Employers planning for next spring’s H-1B lottery have two different numbers to budget around. One is the $100,000 H-1B fee created by presidential proclamation, which courts have blocked. The other is a $103,265 fee that the Department of Homeland Security (DHS) has proposed through rulemaking. Neither is being collected today, but three appeals and one pending rule could change that before cap petitions are filed in April 2027.
Where the $100,000 Payment Stands
Proclamation 10973, signed in September 2025, required a $100,000 payment for new H-1B petitions for workers outside the United States. Under U.S. Citizenship and Immigration Services (USCIS) guidance, it did not apply to extensions, amendments or changes of status approved inside the country. On September 18, 2026, Proclamation 11069 extended the requirement through September 21, 2027.
Employers are not paying it because two federal courts have blocked the agency policies used to collect it. As we explained when the second court ruled, those rulings stopped how the agencies carried out the payment. They did not strike down the proclamations themselves.
Three Appeals in Three Courts
First Circuit. In California v. Mullin, a Massachusetts federal court vacated the USCIS guidance on June 8, 2026. The First Circuit refused to pause that ruling on July 24, and the government’s appeal is pending.
Ninth Circuit. In Global Nurse Force v. Trump, a California federal court blocked the policies under both proclamations on September 30. The government appealed on October 9 and asked for a stay. According to the legal news service Mealey’s, the judge refused on October 30 to pause the case while the appeal runs, so it keeps moving toward a final ruling. The Ninth Circuit has not ruled on a stay.
D.C. Circuit. The courts are not unanimous. In Chamber of Commerce v. DHS, a federal court in Washington upheld the payment on December 23, 2025. The D.C. Circuit heard argument on March 9, 2026 and has not ruled.
If the D.C. Circuit sides with the government while the other courts rule against it, the question would likely reach the Supreme Court. Government lawyers have already said they expect the dispute to end there.
The Separate $103,265 Proposal
On August 25, 2026, DHS proposed a fee of $103,265 on every cap-subject H-1B petition, payable at filing on top of all other fees. It would cover petitions under both the regular cap and the advanced-degree exemption, including change-of-status petitions for graduates already in the country on Optional Practical Training (OPT).
Extensions, amendments, transfers and cap-exempt employers like universities would not pay it, and the proposal offers no reduced rate for small employers or nonprofits. DHS relies on its fee-setting authority rather than the proclamation, so the court rulings on the $100,000 payment do not decide this fee. Comments closed September 24, and no final rule has been published.
What It Means for the 2027 Lottery
USCIS has not announced registration dates for fiscal year 2028. Last year, registration opened March 4, cost $215 per candidate and drew about 211,600 unique registrations, with selection weighted by wage level. Petitions for selected candidates can be filed from April 1.
Several outcomes are possible by then. Should the court orders hold and DHS not finalize its rule, costs look much like this year’s. A final $103,265 fee would attach to every selected cap petition, including those for graduates already working here. And if an appeals court reverses, the $100,000 payment could return for workers outside the country.
What Employers Should Do Now
- Budget for more than one scenario. Show leadership the cost of a cap petition with and without the $103,265 fee.
- Sort candidates by location. Separate candidates already in the U.S. from those abroad, since the two fees reach different groups.
- Confirm wage levels early. Selection is weighted by wage level, so settle job titles and salaries in January. Our year-end checklist covers the other steps to take before then.
- Check the status on filing day. Rulings can come at any time. Keep records of any fee you pay in case refund questions arise.
- Talk with counsel before filing for workers abroad. That group carries the most risk if the $100,000 payment returns.
What Comes Next
A ruling from any of the three appeals courts, or a final DHS rule, could arrive before the lottery opens. USCIS announced last year’s registration dates at the end of January.
Klug Law Firm helps employers plan H-1B cap season, from budgeting and candidate selection to filing. Call (212) 495-9245 or use our contact form to start your fiscal year 2028 planning.
This article is provided for informational purposes only and does not constitute legal advice.