The two fees side by side
| $100,000 proclamation fee | $103,265 proposed DHS fee | |
|---|---|---|
| Legal source | Proclamation 10973 (September 19, 2025), extended September 18, 2026 | DHS notice of proposed rulemaking filed August 25, 2026 |
| Who it covers | New H-1B petitions for beneficiaries outside the US, filed on or after September 21, 2025 | All cap-subject H-1B petitions, including change of status inside the US (for example, F-1 students) |
| Exempt | Petitions filed before the effective date, valid visas, extensions and changes of status inside the US, national interest exceptions | Cap-exempt employers (universities, affiliated nonprofits, nonprofit and government research organizations) and, as proposed, extensions |
| Status on October 1, 2026 | Vacated by the District of Massachusetts on June 8, 2026; not collected | Proposed only; 30-day comment period; no effective date |
| Next step | Government appeal pending; other challenges pending | DHS must review comments and publish a final rule, which could differ; litigation is expected |
The $100,000 proclamation fee: what happened
The proclamation, signed September 19, 2025 and effective two days later, required a $100,000 payment for certain new H-1B petitions. USCIS guidance issued in October 2025 clarified that it applied to beneficiaries outside the United States who needed a visa, and not to extensions, amendments or changes of status for people already in the US.
Several lawsuits followed. In December 2025 a federal court in Washington, D.C. upheld the fee as within presidential authority; that decision is on appeal. On June 8, 2026, the U.S. District Court for the District of Massachusetts reached the opposite conclusion and vacated the agency policy implementing the fee under the Administrative Procedure Act. On July 24, 2026, the First Circuit denied the government’s request to stay that ruling, so the vacatur remains in effect while the appeal continues. USCIS has confirmed it is not collecting the fee.
On September 18, 2026 the President extended the proclamation for another year, to September 21, 2027. The extension does not override the court order, but it keeps the policy alive in case the government wins on appeal.
The proposed $103,265 fee: what the rule would do
The DHS proposal takes a different route. Instead of a proclamation, it uses ordinary notice-and-comment rulemaking to add a fee to cap-subject H-1B petitions. According to the proposal:
- The fee would be $103,265 per cap-subject petition, including petitions under the advanced degree (master’s) cap.
- It would apply regardless of where the worker is, so it reaches F-1 students changing status after OPT, a group the $100,000 proclamation did not cover.
- Cap-exempt employers are excluded: universities, their affiliated nonprofits, and nonprofit or government research organizations.
- DHS estimates about 85,000 cap-subject petitions a year and roughly $8.78 billion in annual revenue.
- The comment period is 30 days, and the proposal sets no effective date. It would at the earliest affect a future cap season, and the final rule may change.
A fee of this size set by regulation is likely to be challenged in court, as the proclamation fee was.
What this means for employers now
- Nothing is owed today. Do not pay either fee unless USCIS instructions change. Watch for official updates rather than media reports.
- Current H-1B workers are not affected. Extensions, amendments and transfers for people already in H-1B status do not fall under either fee as written.
- Budget scenarios for the FY2028 cap season. If the DHS rule is finalized before registration, each selected cap-subject petition could carry the new fee. Plan which roles justify it.
- Review alternatives for key hires: O-1 for workers with strong achievements, L-1 for employees of a foreign affiliate, E-2 for nationals of treaty countries such as Turkey working for a Turkish-owned US company, TN for Canadians and Mexicans, and cap-exempt employers where possible. See our guide to H-1B alternatives and our DOL prevailing wage article.
- Remember the other 2026 cost changes. The registration fee is $215 per beneficiary, and the lottery now uses wage-weighted selection, which favours higher wage levels.
What this means for Turkish professionals and students
For Turkish engineers, doctors and researchers already in the US on H-1B, nothing changes today. For Turkish F-1 students counting on the lottery after OPT, the proposed rule is the bigger risk, because it would reach change-of-status petitions that the $100,000 fee never touched. Those with strong records should consider an O-1 or a self-petitioned EB-2 NIW green card as a parallel path. Turkish founders who own at least half of a US company may be able to use the E-2 treaty visa instead of H-1B.
When to talk to a lawyer
- You are planning cap-subject hires for the next season.
- You are an F-1 student relying on the H-1B lottery.
- You received instructions to pay a fee and are unsure whether it applies.
- You want to compare O-1, L-1, E-2 or cap-exempt options for a key employee.
Talk to Yellow Law Group. We advise employers and professionals on H-1B strategy and alternatives in Turkish and English. Book a free case evaluation or see our H-1B services.
Sources
- Proclamation 10973, “Restriction on Entry of Certain Nonimmigrant Workers,” September 19, 2025
- Yale Office of International Students and Scholars, “Presidential proclamation extends H-1B $100,000 fee policy; fee remains blocked by court order,” September 2026
- Borderless Counsel, “The $100,000 H-1B fee: where things stand and what may come next,” September 29, 2026
- Ellis, “New H-1B $103,265 fee (2026): who pays, who’s exempt,” 2026
- Mintz, “Presidential proclamation extends $100K H-1B fee,” September 23, 2026
This article is general information, not legal advice, and reflects the rules as of October 1, 2026.
