The H-1B $100,000 Payment and Proposed $103,265 Fee

Two Different Measures, Two Similar Numbers

Employers and H-1B workers are now dealing with two separate six-figure H-1B measures that are easy to confuse:

The $100,000 payment required by a presidential proclamation first issued in September 2025 and extended in September 2026.
The proposed $103,265 fee that the Department of Homeland Security (DHS) published as a proposed rule in August 2026.

They come from different legal authorities, cover different petitions, and are at very different stages. This article explains each one using the government's own documents and the court decisions that followed, then walks through the visa options that neither measure covers.

Status as of October 12, 2026. Both measures are the subject of active litigation or rulemaking, and the situation may change quickly. Check the dates on anything you read about them, including this article.

At a Glance

The $100,000 proclamation payment

Source: Proclamation 10973 (Sept. 2025), extended by Proclamation 11069 (Sept. 2026)
Legal authority: INA §§ 212(f) and 215(a), the President's power to restrict entry
Applies to: Certain new H-1B petitions for workers outside the United States
Current status: Implementing agency policies vacated and enjoined by federal courts; not currently being enforced while appeals continue

The proposed $103,265 fee

Source: DHS proposed rule, 91 FR 54817 (Aug. 25, 2026)
Legal authority: A separate DHS rulemaking that, according to DHS, rests on different authority than the proclamation
Applies to: All H-1B cap-subject petitions, including the advanced degree exemption
Current status: Proposed only; comment period closed Sept. 24, 2026; no final rule

The $100,000 Proclamation Payment

What it is

On September 19, 2025, the President issued Proclamation 10973, "Restriction on Entry of Certain Nonimmigrant Workers," which required a $100,000 payment to accompany certain H-1B petitions (90 FR 46027). The proclamation relied on the President's authority to restrict the entry of noncitizens under INA §§ 212(f) and 215(a), rather than on fee-setting authority.

Agency guidance issued when it took effect described the payment as applying prospectively to new petitions for workers outside the United States. It did not apply to petitions filed before the effective date, to already-approved petitions, or to people already holding valid H-1B visas.

The extension

On September 18, 2026, Proclamation 11069 extended the 2025 proclamation for 12 more months, until September 21, 2027 (91 FR 60497). The extension states that the $100,000 payment had been made for over 700 petitions, and cites other changes made since 2025, including a DHS final rule creating a weighted selection process for the H-1B cap lottery that was in effect for the FY 2027 cap season (90 FR 60864).

What the courts have done

The payment has been challenged in several federal courts:

District of Massachusetts (June 8, 2026). In a suit brought by twenty states, the court granted summary judgment and vacated, in its entirety, the collection of DHS and State Department actions implementing the proclamation's payment requirement (California v. Mullin, No. 25-13829).
First Circuit (July 24, 2026). The government asked the appeals court to stay that judgment while it appealed. The First Circuit denied the stay, concluding the government had not made a strong showing that it was likely to succeed on the claim that the implementing policy exceeded statutory authority (State of California v. Mullin, No. 26-1699).
Northern District of California (September 30, 2026). In Global Nurse Force v. Trump, the court vacated and remanded the agency policies and enjoined enforcement of the policies implementing both Proclamation 10973 and its extension, Proclamation 11069, until the agencies conduct notice-and-comment rulemaking. In that decision, the court observed that because of the Massachusetts vacatur and the First Circuit's refusal to stay it, "the $100,000 fee is no longer in effect."

What this means right now: Under these rulings, the $100,000 payment is not currently being enforced. But the proclamation itself has been extended to September 2027, the government's appeal remains pending, and the agencies could pursue rulemaking. Anyone planning an H-1B filing should confirm the current status before filing.

The Proposed $103,265 Fee

What DHS proposed

On August 25, 2026, DHS published a notice of proposed rulemaking titled "Fee for Certain H-1B Petitions" (91 FR 54817; DHS Docket No. USCIS-2026-0298). It would establish a $103,265 fee, payable at filing, for all H-1B cap-subject petitions, including those eligible for the advanced degree (master's cap) exemption. The fee would be in addition to all other applicable fees.

According to DHS's announcement:

The fee is intended to recover a portion of the federal government's costs of administering the immigration system across DHS, the Department of Justice, the Department of State, and the Department of Labor.
DHS estimates it would generate approximately $8.8 billion annually, based on a projected 85,000 cap-subject petitions.
It would not apply to H-1B petitions that are not subject to the cap, such as petitions filed by institutions of higher education, certain nonprofit research organizations, and governmental research organizations.

How it relates to the $100,000 payment

The proposed rule addresses this directly. It describes the $103,265 fee as an additional fee, separate from the $100,000 payment, and based on different authority. It also notes that the 2025 proclamation, unless extended, would expire before the proposed fee takes effect. As described above, the proclamation has since been extended.

Where it stands

The public comment period closed September 24, 2026. A proposed rule does not change the law. Before the fee can take effect, DHS would need to review the comments and publish a final rule, which could differ from the proposal. As of this writing, no final rule has been published.

Other 2026 H-1B Developments

Two other actions from September 2026 are relevant to employers:

Executive Order 14431 (signed September 18, 2026; 91 FR 60501) directs the State Department, DOL, and DHS to take into account, in H-1B petitions, labor condition applications, visas, and entry, whether the sponsoring employer engaged in layoffs within the previous year, or plans future layoffs, that negatively affect similarly situated U.S. workers. It also directed DOL to begin reviewing previously submitted labor condition applications.
A DOL proposed rule on prevailing wages, published March 27, 2026 (91 FR 15454), had not been finalized as of the September 2026 extension proclamation, which described it as a rule that would take effect "once finalized."

Alternatives Neither Measure Covers

As written, both the proclamation payment and the proposed fee apply to H-1B petitions. Depending on the person and the employer, other classifications may be worth evaluating. Each has its own eligibility standard, so none is a simple substitute for an H-1B.

Cap-exempt H-1B employers

The proposed $103,265 fee would apply only to cap-subject petitions. H-1B petitions from cap-exempt employers, such as universities and certain nonprofit and governmental research organizations, would not be covered by it. The $100,000 proclamation payment, by contrast, was not limited to cap-subject petitions.

O-1A: extraordinary ability, temporary

The O-1A is for individuals with extraordinary ability in the sciences, education, business, or athletics. It has no annual cap or lottery, but the evidentiary bar is high: a major internationally recognized award or at least three of eight regulatory criteria. The petition must be filed by a U.S. employer or agent; the regulations do not allow the beneficiary to file for themselves (8 CFR 214.2(o)(2)(i), (o)(3)(iii)). Learn more about the O-1A.

L-1: transfers within a multinational company

The L-1 allows a company to transfer an employee who has worked for a qualifying foreign affiliate for at least one continuous year within the past three years, in a managerial, executive, or specialized knowledge role (8 CFR 214.2(l)(1)(ii)). It is not subject to the H-1B cap. Companies without a U.S. presence can use the new office L-1, which has its own requirements. Learn more about the L-1 or read our guide to the new office L-1.

National Interest Waiver: a green card without a job offer

The NIW is an EB-2 immigrant petition that waives the job offer and labor certification requirements for people who meet the three-prong Matter of Dhanasar test. It can be self-petitioned. Learn more about the NIW or read our prong-by-prong guide to the Dhanasar test.

EB-1A: extraordinary ability green card

The EB-1A is a self-petitioned green card for individuals with sustained national or international acclaim, shown by a one-time major award or at least three of ten regulatory criteria, followed by a final merits determination (8 CFR 204.5(h)). Learn more about the EB-1A.

Our visa comparison page sets these options side by side.

Key Takeaways

The $100,000 payment comes from a presidential proclamation, now extended to September 21, 2027. Federal courts have vacated and enjoined the agency policies implementing it, and a court described the payment as no longer in effect, but appeals are ongoing.
The $103,265 fee is a separate DHS proposal for all H-1B cap-subject petitions. Its comment period closed September 24, 2026, and it is not in effect unless and until DHS issues a final rule.
Neither measure, as written, applies to O-1, L-1, NIW, or EB-1A petitions, and the proposed fee would not apply to cap-exempt H-1B petitions.
Because these rules are changing quickly, verify the current status before making filing decisions.

Weighing your options under the new H-1B rules? Schedule a consultation to discuss which pathway fits your situation. Kevin J Andrews has also discussed the H-1B fee debate in press coverage; see our News page.

Sources and References

Proclamation 10973, Restriction on Entry of Certain Nonimmigrant Workers, 90 FR 46027 (Sept. 19, 2025)
Proclamation 11069, Restriction on Entry of Certain Nonimmigrant Workers, 91 FR 60497 (Sept. 23, 2026)
Executive Order 14431, 91 FR 60501 (Sept. 23, 2026)
DHS, Fee for Certain H-1B Petitions (proposed rule), 91 FR 54817 (Aug. 25, 2026)
USCIS, DHS Proposes Additional H-1B Fee (Aug. 24, 2026)
State of California v. Mullin, No. 26-1699 (1st Cir. July 24, 2026) (order denying stay)
Global Nurse Force v. Trump, No. 4:25-cv-08454-HSG (N.D. Cal. Sept. 30, 2026)
8 CFR 214.2 (O-1 and L-1) and 8 CFR 204.5 (EB-1A and NIW)

This document provides general information only and does not constitute legal advice. Immigration law is complex and individualized. Outcomes depend on specific facts and circumstances. No results are guaranteed. Always consult with a qualified immigration attorney before making decisions about your immigration case.