[Federal Register Volume 91, Number 163 (Tuesday, August 25, 2026)]
[Proposed Rules]
[Pages 54817-54839]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2026-17324]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Part 106
[CIS No. 2861-26; DHS Docket No. USCIS-2026-0298]
RIN 1615-AD20
Fee for Certain H-1B Petitions
AGENCY: U.S. Citizenship and Immigration Services (USCIS), Department
of Homeland Security (DHS).
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Department of Homeland Security (DHS) proposes to
establish a $103,265 fee, payable at the time of filing, for all H-1B
cap-subject petitions, including those eligible for the advanced degree
exemption, which would be imposed in addition to all other applicable
fees or payments. This fee would serve as a dedicated revenue mechanism
to help recover a portion of the federal government's costs of
administering the lawful immigration system, including activities
carried out by DHS, the U.S. Department of Justice (DOJ), the U.S.
Department of State (DOS), and the U.S. Department of Labor (DOL).
DATES: Submission of Public Comments: Written comments must be
submitted on or before September 24, 2026. The electronic Federal
Docket Management System will accept comments before midnight eastern
time at the end of that day.
ADDRESSES: You may submit comments on the entirety of this proposed
rulemaking package, identified by DHS Docket No. USCIS-2026-0298,
through the Federal eRulemaking Portal: http://www.regulations.gov.
Follow the website instructions for submitting comments.
Comments must be submitted in English, or an English translation
must be provided. Comments that will provide the most assistance to
USCIS in implementing these changes will reference a specific portion
of the proposed rule, explain the reason for any recommended change,
and include data, information, or authority that support such
recommended change. Comments submitted in a manner other than the one
listed above, including emails or letters sent to DHS or USCIS
officials, will not be considered comments on the proposed rule and may
not receive a response from DHS. Please note that DHS and USCIS cannot
accept any comments that are hand-delivered or couriered. In addition,
USCIS cannot accept comments contained on any form of digital media
storage devices, such as CDs/DVDs and USB drives. USCIS is also not
accepting mailed comments at this time. If you cannot submit your
comment by using http://www.regulations.gov, please contact the
Regulatory Coordination Division, Office of Policy and Strategy, U.S.
Citizenship and Immigration Services, Department of Homeland Security,
by telephone at (240) 721-3000 for alternate instructions.
FOR FURTHER INFORMATION CONTACT: Office of the Chief Financial Officer,
U.S. Citizenship and Immigration Services, Department of Homeland
Security, 5900 Capital Gateway Drive, Camp Springs, MD 20746; telephone
240-721-3000. Individuals with hearing or speech impairments may access
the telephone number above via TTY by
[[Page 54818]]
calling the toll-free Federal Information Relay Service at 711.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Public Participation
II. Executive Summary
A. Purpose of the Regulatory Action
B. Legal Authority
C. Summary of the Major Provisions of the Regulatory Action
III. Background and Purpose
A. Legal Authority
B. Determination of Immigration Benefits From Which To Require
the Fee
C. Background by Department and Agency
1. USCIS and H-1B Background
2. ICE Background
3. CBP Background
4. EOIR Background
5. DOS and Bureau of Consular Affairs Background
6. DOL Background
D. Full Cost Recovery
IV. Related Rulemakings
A. USCIS Naturalization Application Fee Adjustments
B. Collection and Use of Biometrics by USCIS
C. USCIS Immigration Fees and Related Procedures Required by
H.R. 1 Reconciliation Bill
D. CBP 9-11 Response and Biometric Entry-Exit Fee for H-1B and
L-1 Visas
E. EOIR Fees
F. Improving Wage Protections for the Temporary and Permanent
Employment of Certain Foreign Nationals in the United States
V. Discussion of Proposed Rule
A. Interagency Cost Recovery Framework
B. Cost Basis
1. USCIS Costs
2. ICE Costs
3. CBP Costs
4. EOIR Costs
5. DOS Costs
6. DOL Costs
C. Fee-Setting and Revenue Projection
1. Fee-Setting Methodology
2. Volume Assumption
3. Revenue Projection and Allocation
VI. Statutory and Regulatory Requirements
A. Executive Order 12866 (Regulatory Planning and Review),
Executive Order 13563 (Improving Regulation and Regulatory Review),
and 14192 (Unleashing Prosperity Through Deregulation)
1. Summary
2. Baseline and Population
3. Impact of Proposed Fee on Demand
4. Fee Elasticity
5. Total Quantified Costs of Proposed Rule
6. Benefits of the Proposed Rule
B. Regulatory Flexibility Act (RFA)
1. Initial Regulatory Flexibility Analysis (IRFA)
C. Unfunded Mandates Reform Act of 1995 (UMRA)
D. Executive Order 13132 (Federalism)
E. Executive Order 12988 (Civil Justice Reform)
F. Family Assessment
G. Executive Order 13175 (Consultation and Coordination With
Indian Tribal Governments)
H. National Environmental Policy Act (NEPA)
I. Paperwork Reduction Act (PRA)
Table of Abbreviations
ABC--Activity-Based Costing
BIA--Board of Immigration Appeals
BLS--Bureau of Labor Statistics
CBP--U.S Customs and Border Protection
CEQ--Council on Environmental Quality
CFO--Chief Financial Officer
CFR--Code of Federal Regulations
DHS--U.S. Department of Homeland Security
DOJ--U.S. Department of Justice
DOL--U.S. Department of Labor
DOS--U.S. Department of State
DOW--U.S. Department of War
E.O.--Executive Order
EOIR--Executive Office for Immigration Review
FDNS--Fraud Detection and National Security Directorate
FPDA--Fraud Prevention and Detection Account
FLAG--Foreign Labor Application Gateway
FPS--Federal Protective Service
FR--Federal Register
FY--Fiscal Year
HSA--Homeland Security Act
HSI--Homeland Security Investigations
IEFA--Immigration Examinations Fee Account
ICE--Immigration and Customs Enforcement
INA--Immigration and Nationality Act of 1952
IOAA--Independent Offices Appropriations Act
IRFA--Initial Regulatory Flexibility Act
IT--Information Technology
LCA--Labor Condition Application
NAICS--North American Industry Classification System
NEPA--National Environmental Policy Act
OCIJ--Office of the Chief Immigration Judge
OFLC--Office of Foreign Labor Certification
OIRA--Office of Information and Regulatory Affairs
OMB--Office of Management and Budget
OPT--Optional Practical Training
PRA--Paperwork Reduction Act
RAIO--Refugee, Asylum, and International Operations Directorate
RFA--Regulatory Flexibility Act
RIA--Regulatory Impact Analysis
SAM--Staffing Allocation Model
SBA--U.S. Small Business Administration
SCOPS--Service Center Operations Directorate
SEVIS--Student and Exchange Visitor Information System
SEVP--Student and Exchange Visitor Program
UMRA--Unfunded Mandates Reform Act of 1995
USCIS--U.S. Citizenship and Immigration Services
WHD--Wage and Hour Division
I. Public Participation
DHS invites all interested parties to participate in this
rulemaking by submitting written data, views, comments and arguments on
all aspects of this proposed rule. DHS also invites comments that
relate to the economic, environmental, or federalism effects that might
result from this proposed rule. Comments must be submitted in English,
or an English translation must be provided. Comments that will provide
the most assistance to USCIS in implementing these changes will
reference a specific portion of the proposed rule, explain the reason
for any recommended change, and include data, information, or authority
that support such recommended change. Comments submitted in a manner
other than the one listed above, including emails or letters sent to
DHS or USCIS officials, will not be considered comments on the proposed
rule and may not receive a response from DHS.
Instructions: If you submit a comment, you must include the agency
name (U.S. Citizenship and Immigration Services) and the DHS Docket No.
USCIS-2026-0298 for this rulemaking. Regardless of the method used for
submitting comments or material, all submissions will be posted,
without change, to the Federal eRulemaking Portal at http://www.regulations.gov, and will include any personal information you
provide. Therefore, submitting this information makes it public. You
may wish to consider limiting the amount of personal information that
you provide in any voluntary public comment submission you make to DHS.
DHS may withhold information provided in comments from public viewing
that it determines may impact the privacy of an individual or is
offensive. For additional information, please read the Privacy and
Security Notice available at http://www.regulations.gov.
Docket: For access to the docket and to read background documents,
or comments received, go to http://www.regulations.gov, referencing DHS
Docket No. USCIS-2026-0298. You may also sign up for email alerts on
the online docket to be notified when comments are posted or a final
rule is published.
II. Executive Summary
A. Purpose of Regulatory Action
The purpose of this proposed rulemaking is to generate dedicated
revenue to support the costs of administering the lawful immigration
system. To achieve this result DHS has decided to establish an
additional fee on all H-1B cap-subject petitions, payable at the time
of filing. The new fee is designed, consistent with section 286(m) of
the Immigration and
[[Page 54819]]
Nationality Act (INA), 8 U.S.C. 1356(m), to recover a portion of the
full costs of providing immigration adjudication and naturalization
services incurred by multiple Federal agencies in processing,
adjudicating, and supporting the lawful immigration system, including
U.S. Citizenship and Immigration Services (USCIS), U.S. Customs and
Border Protection (CBP), U.S. Immigration and Customs Enforcement (ICE)
in DHS, Executive Office for Immigration Review (EOIR) in DOJ, DOS, and
DOL.
The lawful immigration system is largely funded by user fees.\1\ As
explained later in this rule, DHS's interagency cost assessments have
identified substantial activities that directly relate to the costs of
providing immigration adjudication and naturalization services across
the federal government, such as adjudications, associated
investigations, enforcement and vetting support, information technology
modernization and maintenance, records management, and interagency
coordination.\2\ The proposed H-1B fee is intended to provide a
powerful, reliable, and predictable revenue tool to address the costs
across multiple agencies that oversee the United States immigration
system.
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\1\ See, e.g., U.S. Citizenship and Immigration Services Fee
Schedule and Changes to Certain Other Immigration Benefit Request
Requirements, 89 FR 6194 (Jan. 31, 2024) (final rule).
\2\ For more information, see section V.A. Cost Basis of this
preamble.
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DHS considered whether to propose recovery of the government's
lawful immigration-related costs by adding a fee to all immigration
benefit requests, or certain requests. We also considered increasing
the existing H-1B petition fee in 8 CFR 106.2(a)(3)(i), rather than
establishing a separate H-1B fee provision. For the reasons provided in
this notice, DHS is proposing to add a fee at 8 CFR 106.2(a)(3)(xii)
that would apply only to H-1B cap-subject petitions, including those
eligible for the advanced degree exemption (not to all H-1B petitions
such as cap-exempt filings).
The proposed fee is specifically to recover the interagency costs
described in this rule and having a standalone fee is intended to
facilitate tracking, allocation, and reporting of the associated
revenue. For these reasons, DHS proposes to implement the $103,265
amount as a separate, additional H-1B fee rather than combining it with
the existing H-1B petition fee in 8 CFR 106.2(a)(3)(i).
The proposed fee, when required, would be in addition to any other
applicable fees or payments,\3\ including any separate payment
obligation required under a Presidential Proclamation.\4\ Accordingly,
to the extent a petitioner is subject both to a proclamation-required
payment and to the additional H-1B fee proposed in this rule, the
petitioner would be required to pay both amounts.
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\3\ See USCIS Form G-1055, Fee Schedule, https://www.uscis.gov/g-1055 (last reviewed/updated June 15, 2026), for a list of
applicable H-1B fees and payments; See also, Presidential
Proclamation 10973, ``Restriction on Entry of Certain Nonimmigrant
Workers.'' 90 FR 46027 (Sept. 19, 2025). The proposed fee in this
NPRM would be an additional fee separate from the $100,000 payment
required by Proclamation 10973 and is based on different authority.
See Section III.A. of this NPRM for a detailed discussion of the
authority for this proposed fee. The payment required by the
Proclamation as a restriction on entry based on sections 212(f) and
215(a) of the INA, 8 U.S.C. 1182(f) and 1185(a), applied to certain
H-1B visa petitions filed on or after September 21, 2025, and before
September 21, 2026. On June 8, 2026, the United States District
Court for the District of Massachusetts vacated the agency guidance
implementing the payment required by Proclamation 10973. See
California et al, v. Mullin, 25-13829 (D. Mass). On June 11, 2026,
the Government filed an appeal with the First Circuit Court of
Appeals. The appeal remains pending as of the date of publication of
this NPRM. If the order is later lifted, DHS would collect the
payment consistent with the terms of the Proclamation and any
extension or renewal of the Proclamation.
\4\ Presidential Proclamation 10973, unless extended, will
expire before the fee proposed in this rule will take effect.
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B. Legal Authority
As explained in more detail in Section III.A., DHS issues this
proposed rule consistent with its authority under various sections of
the Immigration and Nationality Act (INA or the Act), 8 U.S.C. 1101, et
seq., and the Homeland Security Act of 2002 (HSA), Public Law 107-296,
116 Stat. 2135 (codified in part at 6 U.S.C. 101 et seq.).
Specifically, the authority for this proposed rule includes sections
286(j) and (m) of the INA, 8 U.S.C. 1356(j) and (m) (authorizing the
Secretary to set ``fees for providing adjudication and naturalization
services . . . at a level that will ensure recovery of the full costs
of providing all such services'' and to prescribe rules and regulations
to carry out the fee provisions of section 286 of the INA, 8 U.S.C.
1356).
C. Summary of the Provisions of the Regulatory Action
DHS proposes to include the following changes: a $103,265
additional fee imposed on all H-1B cap-subject petitions filed,
including those eligible for the advanced degree exemption under
section 214(g)(5)(C) of the INA, 8 U.S.C. 1184(g)(5)(C).\5\ The
objective of this new fee is revenue generation to support the costs of
administering the lawful immigration system across multiple departments
and agencies. In particular, the proposed fee is intended to:
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\5\ The fee is calculated by dividing the total costs to be
recovered of $8,777,488,035 by the projected fee paying volume of
85,000 to be $103,264.57. DHS rounds the fee to the nearest $5
increment consistent with how it has in other IEFA fee rules for a
final fee of $103,265. See, e.g., U.S. Citizenship and Immigration
Services Fee Schedule and Changes to Certain Other Immigration
Benefit Request Requirements, 88 FR 402, 451 (Jan. 4, 2023)
(proposed rule) (footnote 92).
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Provide additional resources for USCIS to fund
adjudications, systems modernization, fraud detection and national
security vetting, records and fee collection operations, and
coordination with other DHS components; and
Directly support activities related to the lawful
immigration system carried out by USCIS, CBP, ICE, EOIR, DOS, and DOL,
to the extent permitted by statute and appropriations law (for example,
Immigration Court proceedings, consular visa processing, labor
standards enforcement, and inspection and enforcement activities at and
between ports of entry).
DHS expects that the additional revenue generated by this proposed
fee would be used to reimburse U.S. government immigration adjudication
and naturalization costs within the legal immigration system.
III. Background & Purpose
A. Legal Authority
The Secretary's authority for these proposed regulatory amendments
is found in various sections of the INA, 8 U.S.C. Titles I-V, and the
Homeland Security Act of 2002 (HSA), Public Law 107-296, 116 Stat. 2135
(codified in part at 6 U.S.C. 101 et seq.). General authority for
issuing this proposed rule is found in section 103(a) of the INA, 8
U.S.C. 1103(a), which authorizes the Secretary to administer and
enforce the immigration and nationality laws and establish such
regulations as the Secretary deems necessary for carrying out such
authority, as well as section 102 of the HSA, 6 U.S.C. 112, which vests
all of the functions of DHS in the Secretary and authorizes the
Secretary to issue regulations.\6\ Further authority
[[Page 54820]]
for these proposed regulatory amendments is found in:
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\6\ As of March 1, 2003, the former Immigration and
Naturalization Service (INS) ceased to exist as an agency within the
United States Department of Justice (DOJ) and its functions
regarding the applications for immigration benefits and
naturalizations were transferred to the United States Citizenship
and Immigration Services in the United States Department of Homeland
Security. See HSA secs. 451(b) and 471, 6 U.S.C. 271(b), 291.
Although several provisions of the INA discussed in this proposed
rule refer exclusively to the ``Attorney General,'' such provisions
are now to be read as referring to the Secretary of Homeland
Security by operation of the HSA. See, e.g., INA secs. 103(a)(1),
286, 344, 8 U.S.C. 1103(a)(1), 1356, 1455; Nielsen v. Preap, 139 S.
Ct. 954, 959 n.2 (2019).
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Section 286(m) of the INA, 8 U.S.C. 1356(m), which
authorizes the Secretary to set ``fees for providing adjudication and
naturalization services . . . at a level that will ensure recovery of
the full costs of providing all such services, including the costs of
similar services provided without charge to asylum applicants or other
immigrants;''
Section 286(n) of the INA, 8 U.S.C. 1356(n), which permits
``reimburse[ment of] any appropriation the amount paid out of such
appropriation for expenses in providing immigration adjudication and
naturalization services and the collection, safeguarding and accounting
for fees deposited in and funds reimbursed'' from the Immigration
Examinations Fee Account (IEFA); and
Section 286(j) of the INA, 8 U.S.C. 1356(j), which
provides specific authority for the Secretary to prescribe rules and
regulations as may be necessary to carry out the fee provisions of
section 286 of the INA, 8 U.S.C. 1356.
B. Immigration Examination Fee Account
With a few exceptions, the fees collected related to adjudication
and naturalization services must be deposited in the IEFA under section
286(m) of the INA, 8 U.S.C. 1356(m).
The CFO Act, 31 U.S.C. 901-03, requires USCIS' Chief Financial
Officer (CFO), among other things, to review on a biennial basis the
fees imposed by the agency for services it provides and to recommend
changes to its fees. The CFO Act's biennial review requirement is the
minimum frequency required by a fee-funded agency, and DHS may adjust
USCIS fees more often than biennially as needed.\7\ Furthermore, the
CFO Act requires the CFO to direct, manage, and provide policy guidance
and oversight of agency financial management, personnel, activities,
and operations. See 31 U.S.C. 902(a)(5).
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\7\ See 31 U.S.C. 902(a)(8) (``An Agency Chief Financial Officer
shall . . . review, on a biennial basis, the fees, royalties, rents
and other charges imposed by the agency for services and things of
value it provides . . .'').
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USCIS is primarily funded by fees charged to applicants,
petitioners, and requestors for immigration and naturalization benefit
requests. USCIS manages the following four fee accounts:
The IEFA, which includes premium processing revenues (INA
sec. 286(m), (n), (t), and (u); 8 U.S.C. 1356(m), (n), (t), and (u));
The Fraud Prevention and Detection Account (INA secs.
214(c)(12) and (13), 286(v); 8 U.S.C. 1184(c)(12) and (13), 1356(v));
The H-1B Nonimmigrant Petitioner Account (INA secs.
214(c)(9) and (11), 286(s); 8 U.S.C. 1184(c)(9) and (11), 1356(s)); and
The EB-5 Integrity Fund (INA sec. 203(b)(5)(J), 8 U.S.C.
1153(b)(5)(J)).
In 1988, Congress established the IEFA in the Treasury of the
United States. See Public Law 100-459, sec. 209, 102 Stat. 2186 (Oct.
1, 1988) (codified as amended at INA sec. 286(m) and (n), 8 U.S.C.
1356(m) and (n)). Fees deposited into the IEFA fund adjudication and
naturalization services. In subsequent legislation, Congress directed
that the IEFA fund the full costs of providing all such services,
including services provided to immigrants at no charge. See Public Law
101-515, sec. 210(d)(1) and (2), 104 Stat. 2101, 2121 (Nov. 5, 1990).
Consequently, the immigration benefit fees were increased to recover
these additional costs. See, Adjustment to the Examinations Fee
Schedule, 59 FR 30516, 30520 (June 14, 1994) (final rule). DHS has
continued to adjust USCIS fees to recover the costs of providing
adjudication and naturalization services. See, e.g., U.S. Citizenship
and Immigration Services Fee Schedule and Changes to Certain Other
Immigration Benefit Request Requirements, 89 FR 6194 (Jan. 31, 2024)
(final rule) (``2024 Final Rule'').
In FY 2025, the IEFA accounted for approximately 95 percent of
total funding for USCIS, or $7.0 billion out of the $7.4 billion in
total USCIS funding. The remaining USCIS funding came from
appropriations (approximately 4 percent or $0.3 billion) or other fee
accounts (approximately 1 percent or $0.1 billion) in FY 2025.\8\ The
Fraud Prevention and Detection Account \9\ and H-1B Nonimmigrant
Petitioner Account \10\ are both funded by fees for which the dollar
amount is set by statute. DHS has no authority to adjust the fees for
these accounts. The EB-5 Integrity Fund, a new fee account established
in FY 2023, uses initial fees set by statute. In 2025, DHS proposed
adjusting the EB-5 Integrity Fund by the amount of inflation.\11\
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\8\ See DHS, ``Fiscal Year 2027 Budget in Brief'' (April 2025),
https://www.dhs.gov/sites/default/files/2026-04/26_0422_ocfo_fy27-budget-dhs-budget-in-brief.pdf.
\9\ The Fraud Prevention and Detection fees charged to certain
employers petitioning for nonimmigrant workers in the H-1B, H-2B,
and L-1 visa classifications are set by statute. Revenue is used for
activities related to preventing and detecting fraud in immigration
benefit requests. See INA sec. 286(v)(2)(B), 8 U.S.C. 1356(v)(2)(B).
Revenue is shared equally among USCIS, Department of State, and
Department of Labor. Effective July 25, 2018, USCIS also collects
and retains the $50 Commonwealth of the Northern Mariana Islands
fraud fee. See 48 U.S.C. 1806(a)(6)(iv). DHS interprets Fraud
Prevention and Detection Account authority as providing supplemental
funding to cover activities related to fraud prevention and
detection and not prescribing that only those funds may be used for
that purpose. The USCIS Fraud Detection and National Security
Directorate (FDNS) is funded out of both the IEFA and the Fraud
Prevention and Detection Account.
\10\ Certain H-1B fees are required by other laws. Revenue in
the H-1B Nonimmigrant Petitioner Account is shared among USCIS, DOL,
and the National Science Foundation. USCIS receives 5 percent of
these funds. USCIS uses the H-1B Nonimmigrant Petitioner Account as
supplemental funding for the limited H-1B petition and petition for
immigrant worker adjudication activities authorized by statute. See
INA sec. 286(s)(5), 8 U.S.C. 1356(s)(5). The H-1B Nonimmigrant
Petitioner Account does not fully fund the H-1B program at USCIS. As
such, USCIS also uses IEFA fees to administer the program. IEFA fees
are not required for those limited purposes authorized or required
by INA sec. 286(s)(5), 8 U.S.C. 1356(s)(5).
\11\ See DHS, Employment-Based Immigrant Visa, Fifth Preference
(EB-5) Fee Rule, 90 FR 48516 (Dec. 22, 2025) (proposed rule).
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B. Increasing Fees for Certain H-1B Petitions
As discussed previously, the INA permits reimbursement of
``expenses in providing immigration adjudication and naturalization
services.'' See section 286 of the INA, 8 U.S.C. 1356.
DHS considered whether to recover the costs identified in this
proposed rule by increasing fees broadly across all fee-paying
applicants and petitioners but determined that doing so would place
additional costs on individual applicants and petitioners, including
requestors whose applications and petitions may be less directly
connected to employment-based petitioning and who may have fewer
resources available to absorb additional fee increases. After
considering the resources of the different communities and populations
that submit immigration benefit requests to USCIS, DHS has decided to
propose that the costs be recovered by adding a fee to H-1B cap-subject
petitions. DHS considered other options but determined that shifting
these costs to petitioners for H-1B cap-subject petitions was
appropriate considering that they are requests that are generally
submitted by petitioners who have more ability to pay, as opposed to
shifting those costs to all other fee payers.\12\
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\12\ USCIS, G-1055, Fee Schedule https://www.uscis.gov/sites/default/files/document/forms/g-1055.pdf (last updated June 1, 2026),
see Appendix A: I-129, Petition for a Nonimmigrant Worker, pages 35-
36. See Regulatory Impact Analysis for DHS USCIS Fee Schedule and
Changes to Certain Other Immigration Benefit Request Information,
p181-183, https://www.regulations.gov/document/USCIS-2021-0010-8179
(January 2024).
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[[Page 54821]]
DHS acknowledges that the scope of the proposed fee increase in
this rule is significant. DHS proposes this cost shifting approach with
an emphasis on the ability-to-pay principle for determining user
fees.\13\ Petitioners for H-1B cap-subject nonimmigrant workers
generally are required to have the resources necessary to pay the
worker(s) for whom the petition is filed, and DHS does not believe the
proposed fee that the employer must pay USCIS is significant compared
to the petitioner's wage obligation.\14\ DHS further acknowledges that
it has historically spread unrecovered costs for free services, fee-
waived, and fee exempted requests across other fee-paying requests.\15\
While, in appropriate circumstances, DHS has considered the relative
ability of different fee-paying populations to bear unrelated costs, we
have never directly transferred the costs of one program to another
based on a determination that requestors under one program can afford
higher fees more than other general or specific requestors.\16\ Again,
consistent with that past approach, DHS considered whether to recover
these costs by increasing fees broadly across all fee-paying applicants
and petitioners but determined that doing so would place additional
costs on individual applicants and petitioners who may have fewer
resources available to absorb additional fee increases.\17\
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\13\ See GAO, ``Federal User Fees: A Design Guide'' (May 29,
2008), https://www.gao.gov/products/GAO-08-386SP, at 7-12.
\14\ See INA sec. 212(n)(1)(A), 8 U.S.C. 1182(n)(1)(A)
(requiring an H-1B petitioning employer to pay a required wage);
USCIS, ``Characteristics of H-1B Specialty Occupation Workers,
Fiscal Year 2025 Annual Report to Congress, October 1, 2024-
September 30, 2025,'' (Apr. 24, 2026), https://www.uscis.gov/sites/default/files/document/data/fy25_h1b_characteristics_congress_signed_04242026.pdf (last visited
July 6, 2026), stating that the median annual compensation for all
approved H-1B beneficiaries in FY 2025 was $133,000. That equates to
an unadjusted median wage of $798,000 ($133,000 x 6) over the course
of the general 6-year period of H-1B admission.
\15\ See, e.g., 89 FR 6193-6194, 6241; see also U.S. Citizenship
and Immigration Services Fee Schedule, 81 FR 26904, 26915 (May 5,
2016) (proposed rule).
\16\ See, e.g., U.S. Citizenship and Immigration Services Fee
Schedule and Changes to Certain Other Immigration Benefit Request
Requirements, 85 FR 46788, 46869 (Aug. 20, 2020) (final rule)
(stating, ``For the fees that DHS does not limit, we use the total
cost for each form to reallocate the cost of limited fee increases
or workload without fees.''); U.S. Citizenship and Immigration
Services Fee Schedule, 75 FR 58962, 58973 (Sept. 24, 2016) (final
rule) (stating, ``To the extent not supported by appropriations, the
cost of providing free or reduced services must be transferred to
all other fee-paying applicants.''); Adjustment of the Immigration
and Naturalization Benefit Application and Petition Fee Schedule, 72
FR 29851, 29865 (May 30, 2007) (final rule) (stating, ``As with any
other waiver, the loss of that fee revenue would necessarily be
spread across all other benefit applications and petitions, having
the potential to increase those fees.'').
\17\ See, e.g., 89 FR 6193-6194, 6241; USCIS Fee Schedule, 81 FR
73292, 73295-73297 (Oct. 24, 2016) (final rule).
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DHS recognizes that H-1B cap-subject petitioners may object to
paying a fee that recovers costs far beyond the direct adjudication
cost of their individual petition. However, USCIS' fee schedule has
long reflected the need to recover costs associated with administering
the lawful immigration system as a whole, including costs of requests
for which no fee is charged or for which the fee does not recover full
cost. And DHS has historically considered ability to pay as one factor
in setting immigration fees, particularly when determining how to
allocate costs for services that are provided without a fee or at a fee
below full cost. For example, in the 2016/2017 fee rule, DHS used its
discretion to adjust certain immigration benefit request fees that
USCIS believed may be overly burdensome on applicants, petitioners, and
requestors if set at the recommended model output levels.\18\ In that
same rule, DHS specifically excluded the EB-5 program fees from such
discretionary reductions in response to comments based at least
partially on those requestors' ability to pay.\19\
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\18\ See, U.S. Citizenship and Immigration Services Fee
Schedule, 79 FR 73292, 73297 (final rule (Discussing impacts on low-
income individuals; low volume reallocation).
\19\ Id. at 73310.
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DHS anticipates this proposed fee would generate the necessary
revenue provided filing volumes do not fall short of those projected
herein. DHS acknowledges that USCIS may see a reduction in the number
of H-1B cap registrations and some employers, including small entities,
may file fewer petitions as a result of this proposed rule. However,
the success of the USCIS fee model and this rulemaking in generating
the necessary revenue depends on the filing volumes of cap-subject H-1B
petitions not falling short of those projected herein. At the same
time, balancing the goals of administering the lawful immigration
programs using fee revenue, DHS has made considered judgments about how
to receive the needed funds using available and appropriate means. DHS
decided to propose this fee after considering recovery of the
government's lawful immigration-related costs across agencies and the
relative resources of the H-1B Form I-129 filing community.\20\ DHS,
DOJ, DOS and DOL are charged with administering lawful immigration
programs and have decided to use fee revenue to the extent possible.
This proposed rule reflects our combined, considered judgments about
how to fund immigration using available and appropriate means while
balancing the goals of the H-1B program to provide needed workers.
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\20\ See INA sec. 212(n)(1)(A), 8 U.S.C. 1182(n)(1)(A)
(requiring an H-1B petitioning employer to pay a required wage);
USCIS, ``Characteristics of H-1B Specialty Occupation Workers,
Fiscal Year 2025 Annual Report to Congress, October 1, 2024-
September 30, 2025,'' (Apr. 24, 2026), https://www.uscis.gov/sites/default/files/document/data/fy25_h1b_characteristics_congress_signed_04242026.pdf (last visited
July 6, 2026), stating that the median annual compensation for all
approved H-1B beneficiaries in FY 2025 was $133,000. That equates to
an unadjusted median wage of $798,000 ($133,000 x 6) over the course
of the general 6-year period of H-1B admission.
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DHS arrived at the amount of the proposed H-1B fee by calculating
the amount that would need to be added to the fees for Form I-129,
Petition for a Nonimmigrant Worker, to collect the identified annual
costs using USCIS' standard costing and fee calculation methodologies.
In addition to shifting these costs to H-1B cap-subject petitions for
cost recovery, imposing this fee on such petitions aligns with other,
related statutory authorities including:
Section 214(a)(1) of the INA, 8 U.S.C. 1184(a)(1), which
authorizes DHS to prescribe, by regulation, the time and conditions of
the admission of nonimmigrants;
Section 214(c)(1) of the INA, 8 U.S.C. 1184(c)(1), which
authorizes the Secretary to prescribe how an importing employer may
petition for nonimmigrant workers, as well as the form of the petition
and the information that an importing employer must provide in the
petition;
Section 402 of the HSA, 6 U.S.C. 202, which charges the
Secretary with ``[e]stablishing and administering rules \21\ . . .
governing the granting of visas or other forms of permission . . . to
enter the United States'' and ``[e]stablishing national immigration
enforcement policies and priorities''; see also HSA sec. 428, 6 U.S.C.
236; and
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\21\ Section 102(e) of the HSA, 6 U.S.C. 112(e), provides that
``the issuance of regulations by the Secretary shall be governed by
the provisions of chapter 5 of title 5, except as specifically
provided in this chapter, in laws granting regulatory authorities
that are transferred by this chapter, and in laws enacted after
November 25, 2002.''
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Section 451(a)(3) and (b) of the HSA, 6 U.S.C. 271(a)(3)
and (b), which transferred to USCIS the authority to adjudicate
petitions for nonimmigrant status, establish policies for performing
that function, and set national immigration services policies and
priorities.
[[Page 54822]]
After analyzing the costs required for administering lawful
immigration programs, the administration determined that using fee
revenue was appropriate. In this proposed rule DHS has explained that
after considering how to fund the identified costs, and the authorities
available, using a H-1B cap subject petition fee was the most viable
and appropriate means.
C. Background by Department and Agency
1. USCIS and H-1B Background
USCIS is the DHS component primarily responsible for adjudication
of immigration and naturalization benefit requests, including petitions
filed under the H-1B program.\22\ The H-1B program allows U.S.
employers to temporarily hire foreign workers to perform services in a
specialty occupation, services related to a U.S. Department of War
(DOW) cooperative research and development project or coproduction
project, or services of distinguished merit and ability in the field of
fashion modeling. See INA sec. 101(a)(15)(H)(i)(b), 8 U.S.C.
1101(a)(15)(H)(i)(b); Immigration Act of 1990, Public Law 101-649, sec.
222(a)(2), 104 Stat. 4978 (Nov. 29, 1990); 8 CFR 214.2(h). A specialty
occupation is defined as an occupation that requires the (1)
theoretical and practical application of a body of highly specialized
knowledge, and (2) attainment of a bachelor's or higher degree in the
specific specialty (or its equivalent) as a minimum qualification for
entry into the occupation in the United States. See INA sec. 214(i)(l),
8 U.S.C. 1184(i)(l).
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\22\ See HSA secs. 451(b) and 471, 6 U.S.C. 271(b), 291; 8 CFR
214.2(h)(2)(i)(A) (providing that a United States employer seeking
to classify an alien as an H-1B, H-2A, H-2B, or H-3 temporary
employee must file a petition on the form prescribed by USCIS in
accordance with the form instructions).
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Congress has established limits on the number of foreign workers
who may be granted initial H-1B nonimmigrant visas or status each
fiscal year (FY) (commonly known as the ``cap''). See INA sec. 214(g),
8 U.S.C. 1184(g). The total number of foreign workers who may be
granted initial H-1B nonimmigrant status during any fiscal year may not
exceed 65,000. See INA sec. 214(g)(1)(A), 8 U.S.C. 1184(g)(1)(A).
Certain petitions are exempt from the 65,000 numerical limitation.\23\
See INA secs. 214(g)(5) and (7), 8 U.S.C. 1184(g)(5) and (7). The
annual exemption from the 65,000 cap for H-1B workers who have earned a
qualifying U.S. master's or higher degree may not exceed 20,000 foreign
workers. See INA sec. 214(g)(5)(C), 8 U.S.C. 1184(g)(5)(C). DHS
recently revised how USCIS administers the annual H-1B cap selection
process and those changes took effect on February 27, 2026, before the
FY 2027 cap season.\24\
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\23\ Exempt petitions include petitions for (1) employment (or
an offer of employment) at an institution of higher education or a
related affiliated nonprofit entity, (2) employment (or an offer of
employment) at a nonprofit research organization or a government
research organization, or (3) H-1B workers who have earned a
qualifying U.S. master's degree or higher degree. Also exempt are
those petitions for beneficiaries who have previously been counted
under the cap, unless eligible for a full 6-years of authorized
admission when the petition is filed, and who seek to change jobs or
extend their stay during their 6-year period of authorized
admission, and those exempt from the 6 year period of authorized
admission limitation based on section 104(c) or 106(a) and (b) of
the American Competitiveness in the Twenty-First Century Act (AC21),
Public Law 106-313, 114 Stat. 1254 (Oct. 17, 2000), as amended by
section 11030A of the 21st Century Department of Justice
Appropriations Authorization Act, Public Law 107-273, 116 Stat. 1758
(2002).
\24\ See DHS, Weighted Selection Process for Registrants and
Petitioners Seeking to File Cap-Subject H-1B Petitions, 90 FR 60864
(Dec. 29, 2025). See also USCIS, H-1B Specialty Occupations, https://www.uscis.gov/working-in-the-united-states/h-1b-specialty-occupations (last reviewed/updated March 31, 2026).
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Under the current regulation, all petitioners seeking to file an H-
1B cap-subject petition must first electronically submit a registration
for each beneficiary on whose behalf they seek to file an H-1B cap-
subject petition, unless USCIS suspends the registration requirement. 8
CFR 214.2(h)(8)(iii)(A)(1). USCIS monitors the number of H-1B
registrations for unique beneficiaries it receives during the announced
registration period. At the conclusion of that period, if more
registrations for unique beneficiaries are submitted than projected as
needed to reach the numerical allocations, USCIS uses a weighted
selection process to select from among unique beneficiaries for whom
registrations were properly submitted, the number of unique
beneficiaries projected as needed to reach the H-1B numerical
allocations. 8 CFR 214.2(h)(8)(iii)(A)(5) and (6).
A prospective petitioner that properly registered for a beneficiary
who is selected is notified of the selection and instructed that the
petitioner is eligible to file an H-1B cap-subject petition for the
beneficiary named in the selected registration within a filing period
that is at least 90 days in duration. 8 CFR 214.2(h)(8)(iii)(D)(3).
When registration is required, a petitioner seeking to file an H-1B
cap-subject petition is not eligible to file the petition unless the
petition is based on a valid, selected registration for the beneficiary
named in the petition.\25\ 8 CFR 214.2(h)(8)(iii)(D)(1).
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\25\ During the initial filing period, if USCIS does not receive
enough petitions projected to reach the numerical allocations, USCIS
will select additional unique beneficiaries, or reopen the
registration process, as applicable, to receive registrations for
the number of unique beneficiaries projected as needed to reach the
numerical allocations. See 8 CFR 214.2(h)(8)(iii)(A)(7).
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2. ICE Background
ICE is the principal investigative arm of DHS.\26\ In addition to
its other duties, ICE manages the Student and Exchange Visitor Program
(SEVP).\27\ SEVP collects, maintains, analyzes and provides information
so only legitimate foreign students or exchange visitors gain entry to
the United States.\28\ SEVP also ensures that the institutions
accepting nonimmigrant students are certified and follow the federal
rules and regulations that govern them.\29\ SEVP works closely with its
government partners involved in the foreign student process, including
USCIS and the U.S. Department of State.\30\ For example, USCIS and ICE
each have roles in the extension of post completion Optional Practical
Training and F-1 status for eligible students under the H-1B cap-gap
regulations.\31\ Working with partner law enforcement agencies, SEVP
administratively enforces federal rules and regulations governing
schools certified to enroll F and M nonimmigrant students.\32\ Homeland
Security Investigations (HSI) is the principal criminal investigative
directorate of ICE.\33\ HSI plays a role in vetting certain categories
of applicants for admission, like SEVP.\34\
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\26\ See, DHS, ICE, Mission, https://www.ice.gov/mission
(Updated: Mar 7, 2025).
\27\ See, DHS, ICE, Student and Exchange Visitor Program,
https://www.ice.gov/sevis (Updated Jul. 14, 2025).
\28\ Id.
\29\ Id.
\30\ Id.
\31\ See USCIS, Extension of Post Completion Optional Practical
Training (OPT) and F-1 Status for Eligible Students under the H-1B
Cap-Gap Regulations, https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations/extension-of-post-completion-optional-practical-training-opt-and-f-1-status-for-eligible-students (last reviewed/updated Jan. 17, 2025).
\32\ DHS, ICE, Student and Exchange Visitor Program, https://www.ice.gov/sevis (Updated Jul. 14, 2025).
\33\ DHS, ICE, Homeland Security Investigations, https://www.ice.gov/hsi (Updated Mar. 11, 2026).
\34\ DHS, ICE, HSI, Our Offices, Headquarters Offices, Visa
Security Program, https://www.ice.gov/hsi/our-offices/hq/vsp
(Updated Feb 20, 2026).
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3. CBP Background
CBP manages many programs within DHS to safeguard U.S. borders and
enhance the nation's security. For
[[Page 54823]]
example, all persons arriving at a port-of-entry to the United States
are subject to inspection by CBP officers.\35\ CBP is in the process of
expanding contactless inspection processes using biometric facial
comparison technology to process travelers.\36\
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\35\ See, e.g., CBP, About CBP, https://www.cbp.gov/about (last
modified Jun. 1, 2026). See also CBP, Restriction on Entry of
Certain Non-immigrant Workers [H-1B] Memo, https://www.cbp.gov/sites/default/files/2025-09/2025_09_20_-_memo_-
_h1b_restriction_on_entry_1_redacted.pdf (Sep. 20, 2025).
\36\ See CBP, Biometrics: Enhanced Passenger Processing, https://www.cbp.gov/travel/biometrics/enhanced-passenger-processing (last
modified May 8, 2026).
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4. EOIR Background
Within DOJ, EOIR adjudicates matters brought under various
immigration statutes.\37\ EOIR interprets and administers federal
immigration laws by conducting Immigration Court proceedings, appellate
reviews, and administrative hearings.\38\ For example, Immigration
Judges within EOIR conduct section 240 removal proceedings and, in
turn, the Board of Immigration Appeals (BIA) hears appeals from
Immigration Judge decisions. The BIA also hears appeals from certain
decisions of DHS, including petitions to classify the status of alien
relatives for the issuance of preference immigrant visas and fines
imposed for the violation of immigration laws.\39\
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\37\ See EOIR, About the Office, https://www.justice.gov/eoir/about-office (updated May 25, 2025).
\38\ Id.
\39\ See 8 CFR 1003.1(b).
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5. DOS and Bureau of Consular Affairs Background
DOS advises the President in the formulation and execution of
foreign policy and promotes the long-range security and well-being of
the United States.\40\ DOS determines and analyzes the facts relating
to American overseas interests, makes recommendations on policy and
future action, and takes the necessary steps to carry out established
policy.\41\
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\40\ The Department of State was established by act of July 27,
1789, as the Department of Foreign Affairs and was renamed
Department of State by Act of September 15, 1789 (22 U.S.C. 2651
note); see also, DOS, Duties of the Secretary of State, https://www.state.gov/duties-of-the-secretary-of-state/ (last visited Jul.
5, 2026). See also Federal Register, State Department, https://www.federalregister.gov/agencies/state-department (last visited July
6, 2026).
\41\ Id.
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A citizen of a foreign country who seeks to travel to the United
States generally must first obtain a U.S. visa.\42\ The Bureau of
Consular Affairs is the agency within the DOS that issues visas to
qualified travelers in addition to other duties, such as issuing
passports to U.S. citizens overseas.\43\ Other bureaus and offices
within DOS are also involved in immigration. For example, the Bureau of
Population, Refugees, and Migration (PRM) conducts diplomacy aimed at
ending mass and illegal migration.\44\
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\42\ See DOS, Visa Resources, https://www.state.gov/visas/ (last
visited Jul. 5, 2026).
\43\ See DOS, Temporary Worker Visas, https://travel.state.gov/content/travel/en/us-visas/employment/temporary-worker-visas.html
(last visited May 29, 2026).
\44\ See DOS, Bureau of Population, Refugees, and Migration,
https://www.state.gov/bureaus-offices/under-secretary-for-foreign-assistance-humanitarian-affairs-and-religious-freedom/bureau-of-population-refugees-and-migration (last visited July 1, 2026).
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6. DOL Background
The DOL, Wage and Hour Division (WHD), is responsible for
administering various provisions of the INA that extend protections to
different types of nonimmigrant workers including the following:
D-1--The temporary employment of alien crewmembers to perform
longshore activities at U.S. ports
E-3--The temporary employment of foreign nationals from
Australia in specialty occupations
H-1B--The temporary employment of foreign workers in the
United States in specialty occupations or as fashion models
H-1B1--The temporary employment of foreign nationals from
Chile and Singapore in specialty occupations
H-2A--Temporary employment of foreign workers in agriculture
H-2B--The temporary employment of foreign workers for seasonal
skills in areas other than agriculture.
DOL, Office of the Foreign Labor Certification (OFLC), is charged
with ensuring that the employment of prospective foreign workers in the
United States by an employer on a permanent or temporary basis will not
adversely affect the job opportunities, wages, and working conditions
of U.S. workers similarly employed.\45\ Certain visa categories
generally require an employer to obtain a prevailing wage and labor
certification from the OFLC.\46\ For example, before filing an H-1B
petition with USCIS for a nonimmigrant worker in a specialty
occupation, employers must submit a Labor Condition Application (LCA)
to the OFLC attesting compliance with the requirements of the
program.\47\ LCAs are submitted before the beginning date of the period
of authorized employment and adjudicated electronically with the OFLC
through the Foreign Labor Application Gateway (FLAG) system.\48\
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\45\ See, e.g., INA sec. 212(n), 8 U.S.C. 1182(n); see also DOL,
Program and FLAG Resources, https://www.dol.gov/agencies/eta/foreign-labor/programs (last visited May 29, 2026).
\46\ See DOL, H-1B, H-1B1 and E-3 Specialty (Professional)
Workers, https://www.dol.gov/agencies/eta/foreign-labor/programs/h-1b (last visited May 29, 2026).
\47\ Id.
\48\ See Foreign Labor Application Gateway, https://flag.dol.gov/ (last visited May 29, 2026).
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D. Full Cost Recovery
USCIS receives millions of immigration benefits requests \49\ each
year. USCIS is primarily funded by the fees charged to applicants and
petitioners for filing these immigration benefit requests.\50\ DHS is
authorized to charge fees that ensure the full recovery of the costs
associated with providing immigration and naturalization services,
either for select immigration benefits,\51\ or the general costs
associated with providing all adjudication and naturalization services.
As explained more fully below, USCIS is primarily fee-funded, so it
must also ensure that it maintains a sufficient carryover balance \52\
to continue operating. ``[F]ull costs'' in section 286(m) of the INA, 8
U.S.C. 1356(m), necessarily includes support costs, such as physical
overhead, information technology, management and oversight, human
resources, national security vetting and investigations, accounting and
budgeting, and legal expenses.\53\ USCIS revenue carryover provides
financial flexibility to manage the unpredictable nature of immigration
service demand while maintaining accountability through congressional
oversight.\54\ Unlike most Federal agencies, USCIS is
[[Page 54824]]
allowed to retain unspent fee revenue from one fiscal year for use in
future years.\55\ Additionally, as U.S. Government Accountability
Office acknowledges, fee funded agencies like USCIS may need to
designate funds as operating reserves to weather periods when revenue
collections are lower than costs.\56\
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\49\ Benefit request means any application, petition, motion,
appeal, or other request relating to an immigration or
naturalization benefit, whether such benefit is filed on paper form
or submitted in an electronic format, provided such request is
submitted in a manner prescribed by DHS for such purpose. See 8 CFR
1.2.
\50\ See, e.g., 88 FR 402, 404 (Jan. 4, 2023).
\51\ USCIS has in the past set fees on a small or individual
basis, instead of comprehensively based on all USCIS services. See,
e.g., Registration Fee Requirement for Petitioners Seeking To File
H-1B Petitions on Behalf of Cap Subject Aliens, 84 FR 46460 (Sept.
4, 2019) (proposed rule); International Entrepreneur Rule, 81 FR
60130 (Aug. 31, 2016) (proposed rule); Provisional Unlawful Presence
Waivers of Inadmissibility for Certain Immediate Relatives, 77 FR
19902 (Apr. 2, 2012) (proposed rule).
\52\ Carryover balance refers to the unobligated or unexpended
fee revenue accumulated from previous fiscal years. See 88 FR 402,
417.
\53\ Id.
\54\ DHS must submit annual statements of financial condition of
the IEFA Account to Congress, including information on carryover
balances, revenues, withdrawals, and projections for the ensuing
fiscal year. INA sec. 286(o), 8 U.S.C. 1356(o).
\55\ See 8 U.S.C. 1356(n) (stating, ``deposits into the
Immigration Examinations Fee Account shall remain available until
expended'').
\56\ See U.S. Government Accountability Office, Federal User
Fees: Fee Design Options and Implications for Managing Revenue
Instability (Sept. 30, 2013), https://www.gao.gov/assets/gao-13-820.pdf.
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To set fees for immigration benefit requests, DHS has generally
relied on OMB Circular A-25,\57\ which advises that services provided
by a government agency should be self-sustaining, meaning charges for
benefits should be at least as great as the costs to the Government of
providing them.\58\ OMB Circular A-25 also specifies that, when the
Government is supplying a special benefit to an identifiable recipient
that also provides an incidental benefit to the public, the agency need
not allocate costs to the public and should seek to recover from the
recipient the full cost of providing the benefit, as applicable.\59\ In
addition, DHS adheres to the Statement of Federal Financial Accounting
Standards 4 in assessing USCIS' full costs.\60\
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\57\ See OMB Circular A-25, ``User Charges,'' 58 FR 38142 (July
15, 1993) (revising Federal policy guidance regarding fees assessed
by Federal agencies for Government services).
\58\ See OMB Circular A-25, section 5(a) and (b). The primary
objective of OMB Circular A-25 is to ensure that Federal agencies
recover the full cost of providing specific services to users and
associated cost. See OMB Circular A-25, 58 FR 38142, 38144. Full
costs include, but are not limited to: (1) Direct and indirect
personnel costs, including salaries and fringe benefits, such as
medical insurance and retirement; (2) Physical overhead, consulting,
and other indirect costs, including material and supply costs,
utilities, insurance, travel, and rents or imputed rents on land,
building, and equipment; (3) Management and supervisory costs; and
(4) Cost of enforcement, collection, research, and establishment of
standards and regulations. See id., section 6, 58 FR 38142, 38145.
\59\ See OMB Circular A-25, section 6(a)(3), 58 FR 38142, 38145.
OMB Circular A-25 specifies that market price is to be used in
situations when the Government is not acting as sovereign, which is
not the case for immigration benefit requests.
\60\ See FASAB, Federal Accounting Standards Advisory Board
Handbook, Version 24 (09/25), ``Statement of Federal Financial
Accounting Standards 4: Managerial Cost Accounting Standards and
Concepts,'' SFFAS 4 (July 31, 1995), https://files.fasab.gov/pdffiles/handbook_sffas_4.pdf (generally describing cost accounting
concepts and standards, and defining ``full cost'' to mean the sum
of direct and indirect costs that contribute to the output,
including the costs of supporting services provided by other
segments and entities); see also id. at 49-66 (identifying various
classifications of costs to be included and recommending various
methods of cost assignment).
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IV. Related Rulemakings
As stated elsewhere in this preamble, DHS, EOIR, DOS, and DOL are
each engaged in multiple rulemaking actions that are in various stages
of development.\61\ DHS recognizes that policy and regulatory changes
across these departments can affect staffing needs, operational costs,
fee revenue, and processing times. DHS has considered each of these
other rules for peripheral, overlapping, or interrelated effects on
this proposed rule, and has analyzed the potential effects of rules
that may substantively overlap with this rulemaking.
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\61\ The Unified Agenda of Regulatory and Deregulatory Actions
(Agenda) reports on the actions administrative agencies plan to
issue in the near and long term. Released by the Office of
Information and Regulatory Affairs, the Agenda provides important
public notice and transparency about proposed regulatory and
deregulatory actions within the Executive Branch. See 2026
Regulatory Plan and the Unified Agenda of Federal Regulatory and
Deregulatory Actions, https://www.reginfo.gov/public/do/eAgendaMain
(last visited July 9, 2026).
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To the extent possible, DHS has also considered the effects of
intervening or future legislation and policy changes known to USCIS.
Immigration policy is subject to frequent change, and new initiatives
may arise that are not incorporated into proposed rules due to the time
required for rule development and approval. DHS, therefore, cannot
assert that it has considered every policy change planned or that may
occur at all levels and agencies of the U.S. government that could
directly or indirectly affect this proposed rule. However, DHS believes
it has examined and considered all relevant aspects of the issues
addressed by this rulemaking and has articulated a reasoned explanation
for the proposed changes, without relying on factors outside
congressional intent. Specific recent and planned rulemakings and their
effects on this rule are as follows:
A. Naturalization Application Fee Adjustments
As explained in detail later in this preamble, DHS proposed fee
increases for two naturalization forms and changes to fee waivers in a
separate rule.\62\ In the proposal, these fees would recover a portion
of the base cost increases allocated to Form N-400, Application for
Naturalization, and Form N-336, Request for a Hearing on a Decision in
Naturalization Proceedings, with certain adjustments described later in
this preamble. Depending on the timing of the Naturalization Fee Rule
and other rulemakings and policies that may affect the revenue and
costs that support this fee, their effects, if any, will be
incorporated as necessary into the supporting documentation, fee
calculations, policies, and regulatory text in the final rule for this
proposed rule.
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\62\ See, Naturalization Fee Rule.
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B. Collection and Use of Biometrics by USCIS
DHS proposed to amend its regulations governing biometrics use and
collection in separate rulemaking. See Collection and Use of Biometrics
by USCIS, 90 FR 49062 (Nov. 3, 2025) (proposed rule) (Biometrics Rule).
DHS proposed that any applicant, petitioner, sponsor, beneficiary, or
individual filing or associated with a benefit request, other request,
or collection of information must submit biometrics, unless DHS
otherwise exempts the requirement. See, e.g. 90 FR 49062, 49074. In a
previous fee rule, DHS eliminated separate biometric fees in most cases
and incorporated the costs of the USCIS biometrics system and services
into its total costs used to calculate the request fee. See, 2024 Final
Rule at 6278. The Biometrics Rule would make no adjustments to the
USCIS fee schedule, and it is possible that the costs to USCIS or DHS
might vary from costs described and quantified in the NPRM, Section
V.A.4. See, Biometrics Rule. USCIS may consider recovering additional
costs due to the increase in volume of requests requiring biometrics
that would result if the Biometrics Rule is finalized. In this proposed
rule, USCIS used more recent cost and revenue estimates to calculate
the costs that the H-1B Fee would recover than were used in the 2024
Final Rule. See section V.B.1. USCIS Costs later in this preamble.
Depending on whether or when the Biometrics Rule is finalized, and if
this proposed rule is published as a final rule, any difference in the
costs described and quantified by the requirements in the Biometrics
Rule may change the final H-1B fee.
C. USCIS Immigration Fees and Related Procedures Required by H.R.1
Reconciliation Bill
DHS issued an interim final rule (IFR) to codify certain
immigration fees and other provisions required by the One Big Beautiful
Bill Act, Public Law 119-21, 139 Stat. 72 (H.R.1). See, USCIS
Immigration Fees and Related Procedures Required by H.R.1
Reconciliation Bill, 91 FR 22952 (April 29, 2026) (interim final rule).
The rulemaking expanded upon the H.R.1. fees that USCIS already
collected. See, e.g. USCIS Immigration Fees Required by HR-1
Reconciliation Bill, 90 FR 34511 (July 22, 2025) (notice). This
[[Page 54825]]
proposed rule incorporates revenue estimates from H.R.1 fees deposited
in the IEFA. DHS may revise those H.R.1 revenue estimates if it pursues
a final rule adopting the proposed H-1B fee.
D. CBP 9-11 Response and Biometric Entry-Exit Fee for H-1B and L-1
Visas
The CBP 9-11 Response and Biometric Entry-Exit Fee Final Rule, 91
FR 51360 (August 10, 2026) (CBP 9-11 Biometric Fee Rule), expands the
application of the statutory 9-11 Biometric Fee to require covered
employers \63\ to pay the fee for all H-1B and L-1 extension-of-stay
petitions, regardless of whether a Fraud Fee applies or whether there
is a change of employer. The CBP 9-11 Biometric Fee Rule is intended to
ensure consistent funding for DHS's biometric entry-exit system and to
align regulatory practice with congressional intent. See 91 FR 51360.
The statutory fee, however, will expire on Sept. 30, 2027, unless
extended or otherwise reauthorized by Congress.\64\ The CBP 9-11
Biometric Fee Rule also clarifies definitions and compliance
requirements for covered employers but does not establish changes to
reporting or recordkeeping obligations.\65\
---------------------------------------------------------------------------
\63\ ``Covered employers'' are those employers with more than 50
employees in the United States and where more than 50 percent of the
employees in the United States are in H-1B or L-1 nonimmigrant
status. Sec. 402(g), Public Law 114-113.
\64\ See sec. 402(g), Public Law 114-113 (establishing the
initial sunset date for the 9-11 Biometric Fee as September 30,
2025), as amended by sec. 30203(b) of the Bipartisan Budget Act of
2018, Public Law 115-123, 132 Stat. 64, 126 (extending this date to
September 30, 2027).
\65\ See 91 FR 51360.
---------------------------------------------------------------------------
The expansion of the 9-11 Biometric Fee introduces additional
financial and operational considerations. As DHS evaluates the H-1B
proposed rule, we will consider the cumulative impact of multiple fee
requirements, the administrative processes for fee collection, the need
for coordination among components, and additional biometric submission
requirements and related vetting. Depending on the timing of
finalization and implementation of these rules, DHS will analyze the
costs to be funded by the revenue from the CBP 9-11 Biometric Fee Rule
and this rule to ensure the costs to be funded are not duplicated. Both
rules are part of a systematic DHS effort to recover the costs of the
immigration system and support efficient implementation and fiscal
planning as the regulatory environment for employment-based immigration
continues to evolve.
E. EOIR Fees
The EOIR Fees interim final rule implements statutory fee increases
and new fee requirements for filings with EOIR, as mandated by
H.R.1.\66\ These changes include new fees for applications, appeals,
and motions before EOIR, as well as annual adjustments for inflation
and expanded electronic payment requirements.\67\ Importantly, the EOIR
fees established under H.R.1 are required in addition to any other fees
authorized by law, including those set by DHS and USCIS for immigration
benefit requests.\68\
---------------------------------------------------------------------------
\66\ EOIR Fees, 91 FR 35369 (June 11, 2026) (interim final rule)
(EOIR Fees IFR).
\67\ Id at 35370.
\68\ Id.
---------------------------------------------------------------------------
While the EOIR Fees IFR and this proposed rule are separate
regulatory actions, both reflect broader statutory and policy changes
affecting immigration-related fees across federal agencies. The
implementation of updated EOIR fees may influence overall fee
structures, interagency coordination, and revenue projections
associated with the H-1B proposed rule. DHS and DOJ have considered the
effect and uses of the fees collected by DOJ on the costs and revenue
that are the basis of this rule. DHS and its partner agencies have and
will continue to consider the evolving landscape of immigration fees to
ensure consistency and compliance as new rules are finalized and
implemented.
F. Improving Wage Protections for the Temporary and Permanent
Employment of Certain Foreign Nationals in the United States
DOL's proposed rule, Improving Wage Protections for the Temporary
and Permanent Employment of Certain Foreign Nationals in the United
States, 91 FR 15454 (March 27, 2026) (DOL Proposed Wages Rule), would
revise the methodology for determining prevailing wage levels for
employment-based immigrant and nonimmigrant visa programs, including H-
1B, H-1B1, E-3, and PERM. The DOL Proposed Wages Rule would increase
the percentile thresholds used to set prevailing wage levels, with the
intent to better align wages for foreign workers with those paid to
similarly employed U.S. workers in the same occupation and area of
intended employment. See 91 FR 15454. The rule also seeks to strengthen
program integrity and reduce incentives for employers to use these
programs to undercut U.S. wage standards. Id.
If finalized, the DOL Proposed Wages Rule is expected to result in
higher required wage floors for employers seeking to sponsor foreign
workers under the affected visa categories. The proposed adjustments
are expected to have significant financial and operational implications
for employers, including those participating in the H-1B program, and
may affect the overall demand for employment-based immigration
benefits. The DOL Proposed Wages Rule is only one part of a broader set
of regulatory and policy changes aimed at ensuring that the employment
of foreign workers does not adversely affect the wages, working
conditions, and job opportunities of U.S. workers similarly employed.
This H-1B fee proposed rule accounts for the impact of revised
prevailing wage requirements on employer behavior, labor market
dynamics, and the administration of employment-based immigration
programs. As new rules are developed and implemented, including the DOL
Proposed Wages Rule, ongoing coordination between DHS, DOL, and other
federal departments and agencies will be necessary to ensure that
changes to wage protections are harmonized with other regulatory and
policy initiatives and that the cumulative effects on stakeholders are
fully evaluated. DHS may adjust the calculations in this rule, should
it be finalized, based on our evaluation of the cumulative effects of
various concurrent and intervening policy and regulatory changes.
V. Discussion of Proposed Rule
A. Interagency Cost Recovery Framework
Historically, USCIS fee regulations have been structured to recover
only the costs incurred by USCIS in providing immigration adjudication
and naturalization services. However, this proposed rule would recover
costs attributable not only to USCIS, but also to other departments and
agencies that have statutory responsibilities in administering the
lawful immigration system including ICE, CBP, EOIR, DOS, and DOL.
Section 286(m) of the INA, 8 U.S.C. 1356(m), authorizes the Secretary
to set ``fees for providing adjudication and naturalization services .
. . at a level that will ensure recovery of the full costs of providing
all such services,'' including the costs of services provided without
charge. In 1988, Congress enacted INA sections 286(m) and 286(n), which
modified the basic scheme for funding the costs of administering
immigration and naturalization benefits.\69\ In lieu of
[[Page 54826]]
relying on Congressional appropriations as the sole source of funding,
Congress directed that the agency's expenses of administering
immigration and naturalization benefits be funded with fees collected
by the INS for its processing and adjudication of applications.\70\
Specifically, pursuant to section 286(m), Congress established the
Immigration Examinations Fee Account (``IEFA'') and required that ``all
adjudication fees'' ``shall be deposited'' into the IEFA. See 8 U.S.C.
1356(m). According to the conference report accompanying the 1988
legislation, funds in the IEFA were for ``enhancing naturalization and
adjudication programs.'' \71\
---------------------------------------------------------------------------
\69\ See Depts. of Commerce, Justice, and State, the Judiciary,
and Related Agencies Appropriations Act for 1989, Public Law 100-
459, sec. 209, 102 Stat. 2186 (1988).
\70\ See. e.g., U.S. Citizenship and Immigration Services Fee
Schedule, 75 FR 58962, 58966 (Sept. 24, 2010) (final rule) (stating,
``In the absence of appropriations, however, USCIS's only funding
source is fee revenue.'').
\71\ See H.R. Rep. No. 100-979, at 38 (1988).
---------------------------------------------------------------------------
In 1990, Congress amended section 286(m), by adding a proviso to
make clear that fees collected for processing and adjudicating
immigration and naturalization applications should fund all costs
associated with administering such benefits.\72\ The 1990 amendment to
section 286(m) provides:
---------------------------------------------------------------------------
\72\ See Depts. of Commerce, Justice, and State, the Judiciary,
and Related Agencies Appropriations Act for 1991, Public Law 101-
515, secs. 210, 104 Stat. 2101.
That fees for providing adjudication and naturalization services
may be set at a level that will ensure recovery of the full costs of
providing all such services, including the costs of similar services
provided without charge to asylum applicants or other immigrants.
Such fees may also be set at a level that will recover any
additional costs associated with the administration of the fees
---------------------------------------------------------------------------
collected.
INA sec. 286(m), 8 U.S.C. 1356(m) (emphasis added).
As the House Appropriations Committee recognized, the purpose of
the 1990 amendment to section 286(m) was to ensure that fees deposited
in the IEFA will fund ``the entire cost of operating the Adjudications
and Naturalization program.'' \73\ In 2003, the Homeland Security Act
of 2002 (``HSA'') abolished the INS and established DHS.\74\ Congress
transferred to DHS responsibility for adjudicating immigration and
naturalization benefits, which DHS accomplishes primarily through
USCIS.\75\
---------------------------------------------------------------------------
\73\ See Depts. of Commerce, Justice, and State, the Judiciary,
and Related Agencies Appropriations Act for 1991, Hearings Before
the Subcommittee of the Committee on Appropriations, 101st Cong.
(``1990 Appropriations Committee Hearing''), at 72 (1990).
\74\ See Public Law 107-296, secs. 101, 102, 441, 451, 471,
1102.
\75\ Id at secs. 451(b), 441, 116 Stat. at 2196, 2192.
---------------------------------------------------------------------------
DHS has provided the general public with its interpretation of
section 286(m) since at least 2007, setting forth the legal basis for
its authority to set and to adjust fees on immigration and
naturalization applications. And DHS has interpreted section 286(m)'s
plain language as granting it discretion to structure fees to ``recover
the full cost of operating USCIS.'' \76\ Accordingly, the best reading
of the statute is that it authorizes DHS to set fees to recover all of
the costs for the lawful immigration program from fee-paying applicants
and petitioners.
---------------------------------------------------------------------------
\76\ Adjustment of the Immigration and Naturalization Benefit
Application and Petition Fee Schedule, 72 FR 29851, 29856, 29865, &
29867 (May 30, 2007) (final rule); U.S. Citizenship and Immigration
Services Fee Schedule, 75 FR 33446, 33448 (June 11, 2010) (proposed
rule); U.S. Citizenship and Immigration Services Fee Schedule, 75 FR
58962, 58969, & 58973 (Sept. 24, 2016) (final rule); U.S.
Citizenship and Immigration Services Fee Schedule, 81 FR 26904,
26906 (May 5, 2016) (proposed rule).
---------------------------------------------------------------------------
Section 286(n) of the INA, 8 U.S.C. 1356(n), further authorizes the
reimbursement of ``any appropriation'' for amounts paid from that
appropriation for expenses in providing immigration adjudication and
naturalization services and for the collection, safeguarding, and
accounting of fees deposited in and funds reimbursed from the IEFA.
Together, these provisions establish that Congress intended immigration
benefit fees deposited into the IEFA to support the full costs of
providing adjudication and naturalization services, and to permit
reimbursement of other appropriations to the extent those
appropriations fund such services.
Consistent with OMB Circular A-25 and Statement of Federal
Financial Accounting Standards 4, DHS has long interpreted ``full
costs'' to include both direct and indirect costs necessary to provide
immigration services, including support services provided by other
components and agencies. To date, however, DHS has generally exercised
this authority by focusing fee recovery on costs incurred by USCIS, and
we have not included costs borne by other departments and agencies.\77\
The statutory text of section 286(n) of the INA, 8 U.S.C. 1356(n),
states that DHS may ``reimburse any appropriation the amount paid out
of such appropriation for expenses in providing immigration
adjudication and naturalization services.'' Therefore, the statute does
not limit fee-funded cost recovery to USCIS alone.
---------------------------------------------------------------------------
\77\ Likewise, ICE, CBP, and DOJ have proposed or set fees
authorized by section 1356(m) using past rulemaking actions
considering only their own costs. See, e.g., Adjusting Program Fees
for the Student and Exchange Visitor Program, 83 FR 33762 (Jul. 17,
2018) (proposed rule); Implementation of the Electronic System for
Travel Authorization (ESTA) at U.S. Land Borders, 87 FR 18967 (Apr.
1, 2022) (interim final rule) (setting the ESTA fee); Executive
Office for Immigration Review; Fee Review, 85 FR 11866 (February 28,
2020) (proposed rule).
---------------------------------------------------------------------------
This authority is being used more explicitly for several reasons.
One key factor is that interagency costs associated with administering
the lawful immigration system have grown substantially. Additionally,
relying more fully on the existing authority in sections 286(m) and (n)
of the INA, 8 U.S.C. 1356(m) and (n), advances Congress's directive
that immigration adjudication and naturalization services be funded, to
the extent possible, through fees that recover their full costs.\78\
---------------------------------------------------------------------------
\78\ See Depts. Of Commerce, Justice, and State, the Judiciary,
and Related Agencies Appropriations Act for 1991, Public Law 101-
515, sec. 210, 104 Stat. 2101. The 1990 amendment to section 286 (m)
provides:
That fees for providing adjudication and naturalization services
may be set at a level that will ensure recovery of the full costs of
providing all such services, including the costs of similar services
provided without charge to asylum applicants or other immigrants.
Such fees may also be set at a level that will recover any
additional costs associated with the administration of the fees
collected.
Section 286(m) of the INA, 8 U.S.C. 1356(m) (emphasis added).
---------------------------------------------------------------------------
By broadening the costs to be recovered as permitted by the
statute, DHS aims to ensure that fees collected for immigration benefit
requests more accurately reflect the full range of Federal activities
and resources required to support the lawful immigration system.
B. Cost Basis
1. USCIS Costs
DHS proposes recovering a portion of USCIS operating costs through
the proposed additional H-1B fee.\79\ For USCIS, the cost basis for
this proposed rule consists of two components:
---------------------------------------------------------------------------
\79\ Unless otherwise stated, the data used in this rule is
based on FY 2026 costs. Adjustments will be made, as needed, should
this proposed rule be finalized, to address policy changes and
inflation.
---------------------------------------------------------------------------
Projected unfunded IEFA non-premium costs of approximately
$1.8 billion, identified in the FY 2026/2027 IEFA fee review completed
in November 2025; and
A cost transfer from the Premium Processing account of
approximately $1.2 billion, based on the FY 2026 USCIS Operating Plan,
to shift ongoing, core mission costs off the premium processing funding
and onto other fee revenue.\80\
---------------------------------------------------------------------------
\80\ See section 286(u)(4) of the INA, 8 U.S.C. 1356(u)(4),
providing that Premium Processing fee revenue may be used to cover
certain costs, including infrastructure improvements and other costs
of providing adjudication and naturalization services. The cost
basis for this proposed rule transfers certain costs funded by the
Premium Processing account, consistent with section 286(u)(4) of the
INA, 8 U.S.C. 1356(u)(4), to other fee revenue for accounting
purposes.
---------------------------------------------------------------------------
[[Page 54827]]
Together, these elements result in a USCIS cost basis of
approximately $3.0 billion to be recovered through the revenue
generated by the proposed additional H-1B fee. See Table 1. For
additional information, see the USCIS Costs section of the H-1B Rule
Supporting Documentation included in the docket.
Table 1--USCIS Cost Allocation
------------------------------------------------------------------------
Amount (in
Cost type millions)
------------------------------------------------------------------------
IEFA Non-Premium Costs.................................. $1,823.6
Premium Processing Cost Transfer........................ 1,176.4
---------------
Total Cost for USCIS................................ 3,000.0
------------------------------------------------------------------------
a. IEFA Non-Premium Costs
DHS and USCIS use a biennial fee review process to capture any
changes in operating costs and non-premium form fees across the USCIS
enterprise. When conducting a fee review to determine whether current
immigration and naturalization benefit fees will generate sufficient
revenue to fund the anticipated operating costs associated with
administering the nation's lawful immigration system, USCIS usually
assesses its recent operating environment to determine the appropriate
method to assign costs to immigration benefit requests.
USCIS completed its last fee review for the FY 2026/2027 biennial
period in November 2025. Based on projected IEFA-funded costs and
revenue under the current fee schedule, USCIS identified an anticipated
annual need of approximately $1.9 billion. This deficit reflects
additional IEFA-funded requirements that are not covered by existing
fees.
In developing the biennial cost projection for the fee review, all
IEFA non-premium costs were considered, accounting for payroll and non-
payroll costs for on-board and new staff, inflation, resource
requirements or adjustments, and the removal of costs associated with
temporary programs. USCIS started with its general FY 2025 USCIS
Operating Plan, which was slightly adjusted for some return to
workplace costs estimated for the remainder of the fiscal year. USCIS
then made the following adjustments in this review:
Staffing Increases: Added staffing based on the FY 2026
and FY 2027 Staffing Allocation Model (SAM) enhancements, a non-SAM
enhancement request, and a position transfer from the Fraud Prevention
and Detection Account (FPDA), for a total of 6,045 new positions across
most USCIS offices by the end of FY 2027. The SAM enhancements, which
totaled 5,694 positions and an average annual cost of $1.8 billion,
incorporate the effect of recent Executive Orders, as well as the most
recent agency completion rate estimates. The FDNS non-SAM enhancement
of 167 positions in FY 2025 was approved to start ramping up hiring in
response to Executive Orders 14157 \81\ and 14161,\82\ with the overall
goal to enhance USCIS' vetting and screening capabilities and an
average cost of $35.4 million per year. An additional 184 FDNS
positions will be transferred from the FPDA to IEFA for an average
annual cost of $31.3 million;
---------------------------------------------------------------------------
\81\ 90 FR 8439 (Jan. 29, 2025); USCIS will incur additional
costs for implementing advanced background checks, fraud detection
systems, and coordination with law enforcement and intelligence
agencies. These measures will require additional staffing,
technology upgrades, and interagency collaboration.
\82\ 90 FR 8451 (Jan. 30, 2025); USCIS will incur additional
costs for implementing enhanced fraud detection systems, conducting
national security checks, and training staff to handle complex
cases. These measures will require additional staffing, investments
in technology, and interagency coordination.
---------------------------------------------------------------------------
New Facilities and Related Costs: Included costs for
construction of new facilities, rent, and Federal Protective Service
(FPS) coverage to accommodate additional 6,045 staff. Construction is a
one-time cost of approximately $405.7 million in FY 2026 and is removed
from net additional costs in FY 2027. Ongoing rent and FPS costs for
the added space average $75.3 million per year.
Pay and Inflation: Applied assumed annual pay and price
inflation of 3 percent for FY 2026 and FY 2027, including anticipated
promotions and within grade increases, and statutory cost of living
adjustments.
Other Net Additional Costs: Incorporated several major new
or expanded initiatives, including: (1) full internalization of lockbox
operations over the biennial period ($231.1 million); (2) construction
and activation of a new National Records Center ($114.7 million); and
(3) development and operation of a new Voter Verification System ($75.3
million).
Table 2 summarizes the transition from the FY 2025 IEFA nonpremium
annual Operating Plan to the FY 2026/2027 annual average IEFA
nonpremium cost projection. The resulting projected average annual IEFA
nonpremium cost for FY 2026/2027 is approximately $6,960 million.
Table 2--FY 2026/2027 IEFA Non-Premium Cost Projection
[In millions]
------------------------------------------------------------------------
------------------------------------------------------------------------
Total Adjusted FY 2025 IEFA Non-Premium Operating Plan.. $5,037.8
Plus: Pay and Inflation and Promotions/Within-Grade 349.9
Increases..............................................
Plus: Net Additional Costs.............................. 1,604.4
---------------
Total FY 2026 Cost Projection....................... 6,992.1
Plus: Pay Inflation and Promotions/Within-Grade 161.0
Increases..............................................
Plus: Net Additional Costs.............................. (225.2)
---------------
Total FY 2027 Cost Projection....................... 6,927.9
[[Page 54828]]
FY 2026/2027 Annual Average Cost Projection............. 6,960.0
------------------------------------------------------------------------
Within the final $1.9 billion annual average increase in the cost
projection from the FY 2025 Operating Plan, USCIS is assigning $1.6
billion to be recovered through the proposed additional H-1B fee. USCIS
is also adding $174.3 million for new staffing needs identified after
the completion of the biennial fee review. These additional staffing
positions are necessary to address evolving operational requirements,
ensure continuity of critical functions, and support increased workload
demands. The new staff would help USCIS improve processing efficiency,
maintain service levels, and enhance the integrity of the lawful
immigration system, including the H-1B program. These amounts total
$1.8 billion of non-premium IEFA costs to be recovered by the proposed
additional H-1B fee.
As explained earlier in this preamble, DHS has considered and
analyzed other rulemaking projects that are underway for peripheral,
overlapping, or interrelated effects on this rule. For example, DHS and
USCIS would recover additional revenue in the Naturalization Fee Rule.
See, Naturalization Application Fee Adjustments, 91 FR 37500 (June 23,
2026) (proposed rule) (Naturalization Fee Rule). However, the
Naturalization Fee Rule excluded additional facilities costs
incorporated in the final fee review budget. DHS leveraged the data
available to distribute the increase in costs between both rules and
estimated that $272.9 million of the cost increase can be assigned to
the Naturalization Fee Rule, while the remainder is assigned to be
recovered by the proposed additional H-1B fee in this rule. Table 3
highlights the estimated breakout of the non-premium cost increase
assignment for the proposed additional H-1B fee. DHS will incorporate
any changes based on the interaction of this and other related
rulemakings or policy changes as necessary.
Table 3--IEFA Non-Premium Cost Assignment to Proposed H-1B Fee
------------------------------------------------------------------------
Cost (in
IEFA non-premium cost items millions)
------------------------------------------------------------------------
Fee Review Net Cost Increase to Base................... $1,649.3
Additional Staffing Needs Identified After Fee Review 174.3
Completion............................................
----------------
Total Non-Premium IEFA Costs Assigned to Proposed H- 1,823.6
1B Fee............................................
------------------------------------------------------------------------
b. Premium Processing Cost Transfer
In the 2024 Final Rule, DHS transferred $129.8 million in costs to
premium processing to reduce costs to be recovered by non-premium
fees.\83\ In this rule, DHS proposes to take a different approach by
transferring $1.2 billion in costs from the premium processing account
to the non-premium account. This includes $384.8 million in payroll and
$791.6 million in non-payroll expenses.
---------------------------------------------------------------------------
\83\ At pages 6206-6207.
Table 4--Premium Processing Cost Transfer Details
------------------------------------------------------------------------
Amount (in
Cost type millions)
------------------------------------------------------------------------
Payroll Transfer....................................... $384.8
General Expenses Transfer.............................. 791.6
----------------
Total Premium Costs to be Transferred.............. 1,176.4
------------------------------------------------------------------------
Premium processing funds currently support payroll for 1,979 full-
time equivalents (FTE) in the Service Center Operations Directorate
(SCOPS) and 472 FTE in the Refugee, Asylum, and International
Operations Directorate (RAIO). Non-payroll expenses funded by premium
processing also support USCIS' information technology (IT)
infrastructure and other operational needs related to premium
processing activities. Transferring these costs from premium processing
to non-premium funding would provide USCIS with greater flexibility to
invest in IT and other initiatives that enhance adjudication
processing, while ensuring sufficient staffing and support to meet
premium processing time requirements. Some examples of operational
enhancements that USCIS would fund with premium processing funding
include additional personnel to sustain timely vetting and fraud
detection amid significant increases in national security cases, fraud
referrals and site visits, pre-interview screening assessments that
allow USCIS to identify and proactively work high-risk cases, and
consolidating and integrating various federal screening and vetting
information databases and systems.
2. ICE Costs
ICE bears significant expenses for functions that directly support
the administration of the lawful immigration system. These functions
include, among others, investigations and referrals related to
immigration benefit fraud, worksite and employer-compliance activities
tied to nonimmigrant employment categories, data and information-
sharing in support of benefit adjudications, and case
[[Page 54829]]
coordination with USCIS, CBP, DOS, DOL, and EOIR.
The amounts in Table 5 reflect ICE's estimated FY 2026/2027 costs
for these immigration-benefit-related activities, inclusive of
operational expenditures and associated infrastructure (e.g.,
personnel, case management systems, and mission support). Funding some
of these ICE activities with the proposed new H-1B fee would ensure
that a portion of the resources needed to safeguard program integrity
and support lawful use of employment-based nonimmigrant visas are
funded by fee revenue associated with those programs, rather than
relying solely on appropriated funding. The SEVP cost of $50 million in
Table 5 is the projected funding deficit for this program in excess of
the Student and Exchange Visitor Information System (SEVIS) fee revenue
collection forecast.\84\ For additional information, see the ICE Costs
section of the H-1B Rule Supporting Documentation included in the
docket.
---------------------------------------------------------------------------
\84\ As explained previously, DHS is not setting this fee to be
associated with or required for providing a specific service.
Table 5--ICE Cost Allocation
------------------------------------------------------------------------
Cost (in
ICE activity millions)
------------------------------------------------------------------------
Vetting of Aliens Pending Adjudication................. $900.0
Vetting of Applicants for Admission.................... 100.0
Student and Exchange Visitor Program................... 50.0
----------------
Total ICE Costs.................................... 1,050.0
------------------------------------------------------------------------
3. CBP Costs
CBP provides support to the lawful immigration system in various
ways. This rule proposes using the new fee to fund the expansion of a
middleware solution integrated into the traveler inspection process.
This solution provides biometric matching capabilities for travelers
entering and exiting the country through the Traveler Verification
Service (TVS). The costs assigned in this section reflect only those
portions of biometric entry-exit system expenses that are estimated to
be attributable to aliens and immigrants (not U.S. citizens) that are
not expected to be fully funded by appropriated funds or other fee
authorities. DHS will align cost assignments consistent with the
analysis described in Section IV.D to avoid duplicative cost recovery,
taking into account that the statutory authority for the 9-11 Biometric
Fee is currently scheduled to sunset in the next fiscal year. For
additional information, see the CBP Costs section of the H-1B Rule
Supporting Documentation included in the docket.
Table 6--CBP Cost Allocation
------------------------------------------------------------------------
Cost (in
CBP activity millions)
------------------------------------------------------------------------
Traveler Verification Service (TVS).................... $76.2
----------------
Total CBP Costs.................................... 76.2
------------------------------------------------------------------------
4. EOIR Costs
As shown in Table 7, DOJ's Executive Office for Immigration Review
(EOIR) requires substantial personnel, court operational, and
adjudicatory support resources to carry out its immigration court and
appellate functions. These resources support EOIR's adjudication of
asylum applications, cancellation of removal applications, and
associated motions and appeals, as well as related matters before the
Immigration Courts and the BIA. These activities are integral to the
functioning of the lawful immigration system and represent ongoing,
mandatory adjudicative responsibilities.
DHS proposes to allocate a portion of the proposed additional H-1B
fee revenue to support expanded EOIR adjudicatory capacity for FY 2027
and subsequent annualized costs. As reflected in Table 7, the proposed
allocation would fund approximately $3.0 billion in EOIR costs,
including $1.9 billion for personnel, $748.1 million for court-related
non-personnel costs, and $318.8 million for adjudicatory non-personnel
costs.
The proposed EOIR personnel costs would support 8,400 additional
positions organized around Immigration Judge teams and related
operational support. These positions include Immigration Judges,
attorneys, Legal Administrative Specialists or Legal Assistants,
professional administrative staff, and other law-related support
positions. The proposed non-personnel costs would support the
facilities, security, information technology, travel, utilities,
interpretation, transcription, litigation support, representation-
related program costs, Freedom of Information Act (FOIA) support, and
other services necessary for EOIR to conduct timely and accurate
adjudications.
Including these in the costs to be reimbursed with the proposed H-
1B fee is consistent with INA section 286(m), 8 U.S.C. 1356(m), and OMB
Circular A-25, which permit recovery of the full costs of providing
adjudication services, including related personnel, support,
facilities, technology, and overhead.
Table 7 illustrates how allocating a portion of the proposed H-1B
fee revenue to EOIR would provide stable funding for Immigration Court
and Board operations that are closely tied to the administration of the
lawful immigration system. Reliable fee funding would support timely
and accurate adjudications and reduce dependence on appropriations or
transfers to meet core adjudicative needs. For additional information,
see the EOIR Costs section of the H-1B Rule
[[Page 54830]]
Supporting Documentation included in the docket.
Table 7--EOIR Cost Allocation
----------------------------------------------------------------------------------------------------------------
Cost (in
Cost type Description millions)
----------------------------------------------------------------------------------------------------------------
Personnel..................................... 8,400 positions: Immigration Judges, Attorneys, $1,889.9
Legal Administrative Specialists, Professional
Administrative Positions, and Other Law Related
Positions.
Non-Personnel--Court Costs.................... Space and Guard Costs, Travel, Utilities, and IT 748.1
Costs.
Non-Personnel--Adjudicatory Costs............. National Qualified Representation Program 318.8
(NQRP), Interpretation, Transcription,
Litigation Support, and FOIA Costs.
---------------
Total EOIR Costs.......................... ................................................ 2,956.9
----------------------------------------------------------------------------------------------------------------
5. DOS Costs
As shown in Table 8, DOS incurs targeted costs for consular
activities that directly support screening, vetting, and fraud
prevention for employment-based visa applicants, including H-1B
beneficiaries.
DOS costs arise from several areas. The Visa Services Directorate
supports the operation of the Fivecast and related systems used for
joint DOS/USCIS vetting, plus additional contractor support at the
Kentucky Consular Center, to enhance data sharing and risk screening
for visa applicants. The Offices of Fraud Prevention Programs
identified costs that would support AI-enabled fraud screening and link
analysis tools and expanded Diplomatic Security efforts to investigate
and address visa fraud and misuse involving nonimmigrant programs. In
addition, DOS incurs costs for consular sections at 270 posts around
the globe to address enhanced fraud-focused training and additional
staff at consular posts to strengthen in-person review and fraud
detection for employment-based visa cases. The Bureau of Population,
Refugees, and Migration (PRM) incurs costs related to the U.S. Refugee
Admissions Program (USRAP), such as expenses for Mission South Africa.
The Resettlement Support Center (RSC) is responsible for refugee
medical exams and arranging travel to the United States. Other costs
cover the International Organization for Migration's (IOM) operation of
a second RSC and support for refugee airport transfers worldwide, along
with various expenses to maintain case processing infrastructure at
DOS. For additional information, see DOS Costs section of the H-1B Rule
Supporting Documentation included in the docket.
Funding these DOS costs, that are not already funded by fees, with
the proposed additional H-1B fee recognizes that frontend consular
vetting and fraud prevention are integral components of the lawful
immigration system supported by H-1B petition fees.
Table 8--DOS Cost Allocation
------------------------------------------------------------------------
Cost (in
DOS activity millions)
------------------------------------------------------------------------
Visa Services Directorate............................... $321.0
The Offices of Fraud Prevention Programs................ 13.5
Consular sections located at 270 posts.................. 37.5
PRM costs associated with the USRAP..................... 4.0
RSC costs including medical exams and refugee travel to 66.0
the U.S................................................
International Organization for Migration (IOM).......... 22.0
Other data, systems, and case processing infrastructure. 20.0
---------------
Total DOS Costs..................................... 484.0
------------------------------------------------------------------------
6. DOL Costs
DOL performs labor certification, labor condition, and prevailing
wage determination functions that are statutory predicates or delegated
components of certain USCIS employment-based adjudications. The amounts
reflect DOL's projected FY 2026/2027 costs for these functions that are
not already funded by fees.
DOL costs to support this rule come from a variety of areas. The
Permanent (PERM) Program supports required prevailing wage and labor
certification processing for certain employment-based immigrant
petitions (Form I-140, Immigrant Petition for Alien Worker), including
case review, audit, supervised recruitment, and related program
integrity actions and systems that underpin DHS immigrant visa petition
adjudications. The H-1B Visa Program funds LCA processing and
enforcement activities mandated for H-1B petitions (Form I-129,
Petition for a Nonimmigrant Worker), ensuring compliance with wage and
working condition requirements tied to USCIS approvals. The Prevailing
Wage Programs cover prevailing wage determinations used across
employment-based programs (including PERM, H-1B, H-2A, and H-2B). The
H-2A Visa Program reflects the cost of H-2A labor certification
processing and related activities that are statutorily required for
USCIS to adjudicate H-2A petitions. Additional funding for each of
these programs will allow them to expand efforts in support of lawful
immigration.
Additionally, DOL will use revenue from this fee to support the
Wage and Hour Division of the Agency in immigration enforcement
activities across relevant visa programs, including investigations,
housing inspections, wage and hour compliance, and case development and
the Office of the Solicitor to provide legal support and litigation
services for the OFLC and WHD enforcement, including regulatory
drafting, work before the Office of Administrative Law Judges and
[[Page 54831]]
Administrative Review Board, federal court defense, and general legal
support at both national and regional offices.
DHS proposes to fund the DOL cost items in Table 9 with the
proposed additional H-1B fee because these mandatory labor
certification and wage functions are integral components of the
employment-based immigration system. For additional information, see
the DOL Costs section of the H-1B Rule Supporting Documentation
included in the docket.
Table 9--DOL Cost Allocation
------------------------------------------------------------------------
Cost (in
DOL activity millions)
------------------------------------------------------------------------
Permanent (PERM) Program................................ $95.5
H-1B Visa Program....................................... 79.2
Prevailing Wage Programs................................ 70.5
H-2A Visa Program....................................... 136.6
H-2B/CW-1 Visa Programs................................. 128.6
Wage and Hour Division.................................. 350.0
Office of the Solicitor................................. 350.0
---------------
Total DOL Costs..................................... 1,210.4
------------------------------------------------------------------------
C. Fee-Setting and Revenue Projection
1. Fee-Setting Methodology
DHS proposes a $103,265 fee for each H-1B cap-subject petition
filed in addition to other required fees to recover the lawful
immigration-related costs attributed to DHS and other federal agencies,
as described in this rule. Applying this fee to a projected annual
volume of 85,000 \85\ H-1B cap-subject receipts yields projected annual
revenue of approximately $8.8 billion.
---------------------------------------------------------------------------
\85\ The H-1B annual numerical allocations are 85,000 based on
the numerical limitation of 65,000 under section 214(g)(1)(A) of the
INA, 8 U.S.C. 1184(g)(1)(A), and the numerical exception of 20,000
under section 214(g)(5)(C) of the INA, 8 U.S.C. 1184(g)(5)(C).
---------------------------------------------------------------------------
DHS has assessed the costs of the lawful immigration system and has
determined that an additional fee of $103,265 would provide revenue to
cover the costs explained in this rulemaking.\86\ Consistent with its
broad authority under the INA and HSA, DHS is proposing the additional
fee to only apply to H-1B cap-subject petitions and not to all H-1B
petitions, or all I-129 petitions.\87\ DHS believes that cap-subject H-
1B petitioners are willing to pay and can afford an additional $103,265
fee. The addition of this proposed fee to H-1B cap-subject petitions is
intended to provide a dedicated source of revenue to reimburse the
federal government for some of the costs of administering the lawful
immigration system, including certain costs incurred by other
departments and agencies.
---------------------------------------------------------------------------
\86\ DHS recognizes that the proposed $103,265 fee is close to
the $100,000 payment required by Proclamation 10973, ``Restriction
on Entry of Certain Nonimmigrant Workers'' See 90 FR 46027 (Sept.
19, 2025). The payment required by the Proclamation as a restriction
on entry based on sections 212(f) and 215(a) of the INA, 8 U.S.C.
1182(f) and 1185(a), applied to certain H-1B visa petitions filed on
or after September 21, 2025, and, unless the Proclamation is
extended, before September 21, 2026. On June 8, 2026, the United
States District Court for the District of Massachusetts vacated the
agency guidance implementing the payment required by Proclamation
10973. See California et al, v. Mullin, 25-13829 (D. Mass). On June
11, 2026, the Government filed an appeal with the First Circuit
Court of Appeals. The appeal remains pending as of the date of
publication of this NPRM. If the order is later lifted, DHS would
collect the payment consistent with the terms of the Proclamation
and any extension or renewal of the Proclamation. This NPRM,
however, is based on different authority than the payment required
by Proclamation 10973. See Section III.A. of this NPRM.
\87\ See INA secs. 214(a)(1) and (c)(1), 8 U.S.C. 1184(a)(1) and
(c)(1), and HSA secs. 402 and 451(a)(3) and (b), 6 U.S.C. 202 and
271(a)(3) and (b).
---------------------------------------------------------------------------
DHS is proposing to not require the fee to be paid with a petition
for a cap-exempt H-1B nonimmigrant. That is because many cap-exempt H-
1B nonimmigrants are employed by nonprofit research organizations,
governmental research organizations and educational institutions, and
DHS has decided that exempting those organizations is consistent with
the application of the asylum program fee on such petitioners. See 8
CFR 106.1(f)(2) and 106.2(c)(13)(i); see also, 2024 Final Rule at 6206-
6207 (discussing why DHS decided to provide certain fee reductions and
fee exemptions for nonprofits and educational institutions). DHS
considered recovering the costs identified in this rule by applying it
to all benefit requests, however, as explained in section III.B, DHS is
not proposing to recover the costs by imposing an additional fee on all
benefit requestors, or all I-129 petitioners, because DHS believes that
H-1B cap-subject petitioners, as compared to other benefit requestors,
are most willing and able to pay an additional fee.
DHS recognizes that the other agency costs that are included in
this rule and used to establish the fee proposed in this rule are new.
DHS also recognizes that DOS and DOL have not independently used the
authority in section 286(m) of the INA, 8 U.S.C. 1356(m), to establish
fees to cover the costs they incur for administering adjudication
services. However, in 2024, for the first time, DHS established a new
Asylum Program Fee of $600 to be paid to fund the asylum program by any
petitioner filing a Petition for a Nonimmigrant Worker, Form I-129, a
Petition for a CNMI-Only Nonimmigrant Transitional Worker, Form I-
129CW, or an Immigrant Petition for Alien Worker, Form I-140. See 8 CFR
106.2(c)(13); 2024 Final Rule. Before that fee, DHS had never directly
transferred the costs of one program to another.\88\
---------------------------------------------------------------------------
\88\ See, U.S. Citizenship and Immigration Services Fee Schedule
and Changes to Certain Other Immigration Benefit Request
Requirements, 88 FR 402, 453 (Jan. 4, 2023) (proposed rule).
---------------------------------------------------------------------------
In addition, DHS generally adjusts its fees based on the fee study
required by the CFO Act after determining that current fees need to be
adjusted because they do not reflect the current burden of
adjudication, they are inadequate to fund the total costs of operating
USCIS, and we have identified areas of USCIS operations that need
enhancements or additional resources. The primary objective of the fee
review is to determine whether current immigration and naturalization
benefit fees will generate sufficient revenue to fund anticipated
operating costs associated with administering USCIS' role in the
nation's lawful immigration system.\89\ USCIS forecasts costs, revenue,
and operational metrics to identify the difference between anticipated
costs and revenue to calculate fees.
---------------------------------------------------------------------------
\89\ Id. at 426.
---------------------------------------------------------------------------
In addition, DHS has generally adhered to OMB Circulars A-25 and A-
[[Page 54832]]
11, nonbinding internal executive branch direction for the development
of fee schedules and appropriations requests, respectively. See 88 FR
402, 415 ; 5 CFR 1310.1. DHS recognizes that they reflect best
practices and we have used the activity-based costing (ABC) methodology
supported in Circulars A-25 and A-11 to develop past USCIS fee
schedules.
Similar to the establishment of the Asylum Program Fee, DHS has
never set a fee for a specific immigration sub-population that submits
a certain USCIS benefit request to fund general USCIS operating costs,
costs that are currently borne by other DHS components, costs that are
borne by other executive branch departments, or costs that have been
generally funded by a Congressional appropriation. Nevertheless,
although it has not historically been fulsomely applied, section 286(m)
of the INA, 8 U.S.C. 1356(m), authorizes DHS to set fees to recover the
full aggregate costs of providing immigration benefits and services,
including costs incurred by other federal agencies that are materially
involved in the delivery of those services.\90\ DHS is not required to
determine USCIS immigration benefit request fees using ABC methodology,
and is not required to spread costs evenly among fee-paying immigration
benefit requests, as long as the methodology used to set a fee or fees
is rational and authorized by law. Thus, for the reasons explained in
this proposed rule, DHS may charge fees to H-1B petitioners to deposit
into the IEFA and use those funds to reimburse other executive branch
departments, agencies, or DHS components for expenses incurred in or
directly related to providing immigration adjudication and
naturalization services.
DHS does not propose this additional H-1B fee without having
carefully considered its implications and effects. DHS realizes that
some petitioners will object to funding the costs of non-USCIS
administered programs to which they have no connection or from which
they receive no direct benefit. At the same time, the agencies to be
funded from this fee are charged with administering programs related to
the administration of immigration adjudication and naturalizations
service and DHS has determined that fee revenue should be used to
reimburse those programs. In addition, while the purpose of this
proposed rule is to generate additional revenue to fund adjudication
services, DHS believes the fee would have indirect benefits. DHS
believes that U.S. employers, if required to pay an additional $103,265
fee when filing an H-1B cap-subject petition, would be less likely to
hire an H-1B worker over a qualified and highly-skilled American worker
unless the need is legitimate and they have no alternative for
obtaining the specialized skills of the employee. Given that demand for
H-1B workers greatly exceeds the statutory cap, this fee could also
have the indirect benefit of better protecting the wages and job
opportunities of U.S. workers, as the H-1B program is intended to do.
2. Volume Assumption
As described above, the total number of foreign workers who may be
granted initial H-1B nonimmigrant status during any fiscal year may not
exceed 85,000. See INA secs. 214(g)(1)(A) and (g)(5)(C), 8 U.S.C.
1184(g)(1)(A) and (g)(5)(C). For purposes of this proposed rule, DHS
assumes an annual filing volume of 85,000 H-1B cap-subject petitions,
all of which would be subject to the proposed H-1B fee in addition to
all other required fees.\91\
3. Revenue Projection and Allocation
The proposed fee of $103,265 and the projected volume of 85,000
yield a total revenue projection of approximately $8.8 billion, as
shown in Table 10:
Table 10--H-1B Fee Annual Revenue Projection
------------------------------------------------------------------------
------------------------------------------------------------------------
Proposed H-1B Fee...................................... $103,265
Projected Cap-Subject Volume........................... 85,000
Revenue Projection..................................... $8,777,525,000
------------------------------------------------------------------------
USCIS, after retaining the necessary share to recover its
associated costs, would allocate the revenue collected from the
proposed additional H-1B fee to the five agencies and departments
previously identified for actual expenses incurred based on the
estimated share of the costs explained in this rule. Table 11 shows the
initial proposed distribution for revenue collections:
Table 11--Proposed Allocation of Annual H-1B Fee Revenue by Agency/
Department
------------------------------------------------------------------------
Revenue allocation
Agency/department Share (%) (in millions)
------------------------------------------------------------------------
USCIS............................. 34.2 $3,000.0
ICE............................... 11.9 1,050.0
CBP............................... 0.9 76.2
EOIR.............................. 33.7 2,956.9
DOS............................... 5.5 484.0
DOL............................... 13.8 1,210.4
-------------------------------------
Total Revenue................. 100 8,777.5
------------------------------------------------------------------------
DHS and USCIS will execute agreements with the other executive
branch departments, agencies, or DHS components to reimburse them for
expenses incurred in or directly related to providing immigration
adjudication and naturalization services as authorized by section
286(n) of the INA, 8 U.S.C. 1356(n) and in compliance with other laws
and regulations that govern reimbursable agreements among federal
agencies. The details of those agreements, including the process of
requesting reimbursement, the timing of requests, required
documentation, amounts, and other limitations would be determined
before a final rule that codifies the fee proposed in this rule takes
effect.
---------------------------------------------------------------------------
\90\ See also, INA sec. 286(n), 8 U.S.C. 1356(n), which permits
``reimburse[ment of] any appropriation the amount paid out of such
appropriation for expenses in providing immigration adjudication and
naturalization services and the collection, safeguarding and
accounting for fees deposited in and funds reimbursed'' from the
IEFA.
\91\ This proposed additional fee would not apply to H-1B
petitions that are not subject to the cap, for example, cap-exempt
petitions covered by INA secs. 214(g)(5) and (7), 8 U.S.C.
1184(g)(5) and (7).
---------------------------------------------------------------------------
[[Page 54833]]
VI. Statutory and Regulatory Requirements
A. Executive Orders 12866 (Regulatory Planning and Review), 13563
(Improving Regulation and Regulatory Review), and 14192 (``Unleashing
Prosperity Through Deregulation'')
E.O.s 12866 and 13563 direct agencies to assess the costs and
benefits of available regulatory alternatives and, if a regulation is
necessary, to select regulatory approaches that maximize net benefits.
E.O. 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. E.O. 14192 directs agencies to significantly reduce the
private expenditures required to comply with Federal regulations and
provides that ``any new incremental costs associated with the new
regulations shall, to the extent permitted by law be offset by the
elimination of existing costs associated with at least 10 prior
regulations.''
The Office of Management and Budget (OMB) has designated this
proposed rule a ``significant regulatory action'' that is economically
significant, as defined under section 3(f)(1) of E.O. 12866 because its
annual effects on the economy exceed $100 million in any year of the
analysis. Accordingly, the rule has been reviewed by the OMB.
This rule is not an E.O. 14192 regulatory action because it is
being issued with respect to an immigration-related function of the
United States. The rule's primary direct purpose is to implement or
interpret the immigration laws of the United States (as described in
section (a)(17) of the INA, 8 U.S.C. 1101(a)(17), or any other function
performed by the U.S. Federal Government with respect to aliens. See
OMB Memorandum M-25-20, ``Guidance Implementing Section 3 of Executive
Order 14192, titled ``Unleashing Prosperity Through Deregulation''
(Mar. 26, 2025).
1. Summary
DHS is proposing a fee of $103,265 for all H-1B cap-subject
petitions, including small employers or nonprofits. The purpose of this
NPRM is to generate additional revenue to support the costs of
administering the lawful immigration system. The proposed additional
fee, if finalized as proposed, would provide a new targeted revenue
mechanism to help recover a portion of the costs incurred by multiple
Federal agencies in processing, adjudicating, and supporting the lawful
immigration system, including USCIS, CBP, ICE, EOIR, DOS, and DOL. The
fee would allow USCIS to further refine its fee model and recover
costs.
DHS estimates that this proposed rule would create annual
quantified costs of approximately $8.8 billion over the 10-year period
of analysis (FY 2027 through FY 2036). To compare costs over time, DHS
applies 3 percent and 7 percent discount rates to the total estimated
costs of the proposed rule. DHS estimates the 10-year total costs of
the proposed rule to be $74.9 billion discounted at 3 percent, and
$61.6 billion discounted at 7 percent. Table 12 presents the OMB
Circular A-4 accounting statement showing the costs, benefits, and
transfers associated with this rule.\92\
---------------------------------------------------------------------------
\92\ OMB, ``Circular A-4'' (Sept. 17, 2003),
trumpwhitehouse.archives.gov/sites/whitehouse.gov/files/omb/circulars/A4/a-4.pdf (last visited Aug. 1, 2025).
Table 12--OMB A-4 Accounting Statement
[$ billions, FY 2027]
----------------------------------------------------------------------------------------------------------------
Time period: 10 years
-----------------------------------------------------------------------------------------------------------------
Primary Minimum Maximum
Category estimate estimate estimate Source citation
----------------------------------------------------------------------------------------------------------------
BENEFITS
----------------------------------------------------------------------------------------------------------------
Annualized Monetized Benefits......... Not Estimated Regulatory impact
analysis (RIA).
------------------------------------------------
Annualized quantified, but N/A N/A N/A RIA.
unmonetized, benefits.
------------------------------------------------
Qualitative (unquantified) Benefits... This fee would serve as a dedicated revenue RIA.
mechanism to help recover a portion of the
federal government's costs of administering
the lawful immigration system, including
activities carried out by USCIS, CBP, ICE,
EOIR, DOS, and DOL.
----------------------------------------------------------------------------------------------------------------
COSTS
----------------------------------------------------------------------------------------------------------------
Annualized monetized costs for 10-year (3% and 7%) $8.8 RIA.
period starting in FY 2027 through FY
2036.
------------------------------------------------
Annualized quantified, but N/A RIA.
unmonetized, costs.
------------------------------------------------
Qualitative (unquantified) costs...... N/A RIA.
----------------------------------------------------------------------------------------------------------------
TRANSFERS
----------------------------------------------------------------------------------------------------------------
Annualized monetized transfers: ``on N/A RIA.
budget''.
------------------------------------------------
From whom to whom?.................... N/A RIA.
------------------------------------------------
Annualized monetized transfers: ``off- N/A RIA.
budget''.
------------------------------------------------
From whom to whom?.................... N/A RIA.
------------------------------------------------
Miscellaneous Analyses/Category....... Effects Source Citation (RIA,
preamble, etc.).
------------------------------------------------
Effects on State, local, or tribal N/A RIA.
governments.
------------------------------------------------
[[Page 54834]]
Effects on small businesses........... DHS estimates that the proposed rule would Regulatory Flexibility
result in a significant economic impact on Act (RFA) analysis.
11,051 small entities (76 percent of small
entities that filed cap-subject petitions in
FY 2025) due to additional fees proposed in
this rulemaking.
------------------------------------------------
Effects on wages...................... N/A RIA.
------------------------------------------------
Effects on growth..................... N/A RIA.
----------------------------------------------------------------------------------------------------------------
2. Baseline and Population
DHS has decided to make up the funding shortfall identified in this
rule by charging a fee for all Form I-129 H-1B cap-subject petitions,
payable at the time of filing the petition. The number of aliens who
may be issued initial H-1B visas or otherwise provided initial H-1B
nonimmigrant status during any fiscal year has been capped at various
levels by Congress over time, with the current numerical limit being
65,000 per fiscal year. See section 214(g)(1)(A) of the INA, 8 U.S.C.
1184(g)(1)(A). Congress has also provided for various exemptions from
this annual numerical limit, including an exemption for 20,000 aliens
who have earned a master's or higher degree from a U.S. institution of
higher education. See sections 214(g)(5) and (7) of the INA, 8 U.S.C.
1184(g)(5) and (7). DHS implemented an electronic H-1B registration
process to facilitate the selection of H-1B cap-subject petitions
toward the annual numerical allocations.\93\ Under current regulations,
all petitioners seeking to file an H-1B cap-subject petition must first
electronically submit a registration for each beneficiary on whose
behalf they seek to file an H-1B cap-subject petition, unless USCIS
suspends the registration requirement. 8 CFR 214.2(h)(8)(iii)(A)(1). In
general, before filing an H-1B petition, the employer is required to
obtain a certified LCA from the DOL. See 8 CFR 214.2(h)(4)(i)(B)(1).
The LCA collects information about the employer and the occupation for
the H-1B worker(s). The LCA requires certain attestations from the
employer, including, among others, that the employer will pay the H-1B
worker(s) at least the required wage. See 20 CFR 655.731 through
655.735. In addition, DHS also charges a registration fee on H-1B
registrations.\94\ Additional fees required to file a Form I-129,
Petition for a Nonimmigrant Worker, are listed on the G-1055 Fee
Schedule.\95\
---------------------------------------------------------------------------
\93\ See, Registration Requirement for Petitioners Seeking To
File H-1B Petitions on Behalf of Cap-Subject Aliens, 84 FR 888 (Jan.
31, 2019) (final rule).
\94\ Registrants or their representative are required to pay the
nonrefundable H-1B registration fee for each beneficiary before
being eligible to submit a registration for that beneficiary for the
H-1B cap. The fee will not be refunded if the registration is not
selected or is withdrawn. See 2024 Final Rule. Also, see USCIS,
``Frequently Asked Questions on the USCIS Fee Rule,'' available at
https://www.uscis.gov/archive/frequently-asked-questions-on-the-uscis-fee-rule (last updated Apr. 01, 2025).
\95\ USCIS, G-1055, Fee Schedule https://www.uscis.gov/sites/default/files/document/forms/g-1055.pdf (last updated June 1, 2026),
see Appendix A: I-129, Petition for a Nonimmigrant Worker, pages 35-
36.
---------------------------------------------------------------------------
In FY 2020, DHS implemented an electronic registration process for
the H-1B cap-subject petitions. Prospective petitioners seeking to file
H-1B cap-subject petitions, including for beneficiaries eligible for
the advanced degree exemption, first must electronically register and
pay the associated H-1B registration fee for each beneficiary.\96\ Most
recently, DHS implemented a weighted selection process that favors
allocating H-1B visas to higher-skilled and higher-paid aliens while
maintaining the opportunity for employers to secure H-1B workers at all
wage levels.\97\
---------------------------------------------------------------------------
\96\ USCIS, ``H-1B Electronic Registration Process,'' available
at https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-electronic-registration-process (last updated Jan. 30, 2026).
\97\ DHS, USCIS, Weighted Selection Process for Registrants and
Petitioners Seeking To File Cap-Subject H-1B Petitions, 90 FR 60864
(Dec. 29, 2025) (final rule).
---------------------------------------------------------------------------
In Table 13, DHS presents data from receipts of Form I-129
petitions for H-1B classification that employers have filed on behalf
of nonimmigrant workers. The following table shows total Form I-129
receipts for H-1B classification and cap-subject H-1B petitions for FY
2021 through FY 2025. DHS estimates that 442,020 is the 2-year average
annual number of Form I-129 petitions for H-1B classification filed by
employers; the 2-year average of cap-subject receipts is 108,910. DHS
is highlighting the 2-year average taking into consideration the impact
of the beneficiary centric selection process for H-1B registrations, as
well as modernization, and improvement to the efficiency of the H-1B
program. Generally, the filing volume of cap-subject H-1B petitions
differs from the numerical limits set by Congress as USCIS has
historically selected more than 85,000 beneficiaries/registrations in
the lottery and received more than 85,000 H-1B cap-subject petitions,
to account for denied, rejected, or withdrawn petitions. If this rule
were finalized as proposed, DHS anticipates a projected volume of
85,000 would be subject to the proposed additional fee.
Table 13--Receipts Form I-129, Petition for a Nonimmigrant Worker, H-1B for FY 2021 Through FY 2025
----------------------------------------------------------------------------------------------------------------
Fiscal year Total receipts Cap-subject receipts *
----------------------------------------------------------------------------------------------------------------
2021............................................................... 398,281 79,903
2022............................................................... 474,292 111,269
2023............................................................... 386,593 74,759
2024............................................................... 427,314 111,108
[[Page 54835]]
2025............................................................... 456,726 106,711
--------------------------------------------
5-year Total................................................... 2,143,206 483,750
--------------------------------------------
3-year Annual Average.......................................... 428,641 96,750
--------------------------------------------
FY 2024 through FY 2025 Total.................................. 884,040 217,819
--------------------------------------------
FY 2024 through FY 2025 Annual Average......................... 442,020 108,910
----------------------------------------------------------------------------------------------------------------
Source: DHS, USCIS, Office of Performance and Quality (OPQ); ELIS and CLAIMS3 databases, queried Mar. 2026,
PAER0020722.
* The basis for classification is ``new employment'' and numerical limitation information is ``Cap H-1B
Bachelor's Degree'' and ``Cap H-1B U.S. Master's Degree or Higher''. Fiscal year of receipt and the fiscal
year of the cap may differ, resulting in year-to-year deviations shown. These deviations are smoothed out by
the average estimates.
3. Impact of Proposed Fee on Demand
As explicitly described in the preamble, the current fee schedule
does not generate sufficient government revenue to support the costs of
administration of the lawful immigration system. To recover certain
costs of USCIS, other DHS components, and other executive branch
agencies engaged in administering the lawful immigration system, DHS is
proposing to establish an additional fee of $103,265 for cap-subject H-
1B nonimmigrant petitions. A recent analysis, Borjas (2026) suggests
that H-1B petitioners would be willing to pay a one-time fee ranging
from $100,000 to $200,000 to hire a foreign-born worker.\98\ This
analysis combines two administrative data sources that collect
proffered wages and other information on H-1B beneficiaries (DHS's FY
2021 to FY 2024 H-1B beneficiary data merged with DOL's LCA data) and
Census Bureau data on U.S. natives (American Community Survey 2023 One-
Year sample). The combined data is used to estimate the wage gap
between an H-1B worker and a statistically comparable U.S. native
worker via standard log wage regression model, controlling for
education, age, gender, occupation and geography. The resulting wage
gap indicates employers pay H-1B workers 16.1 percent less than the
expected wages of a comparable native worker. Given observed H-1B wages
and six-year durations, this estimate supports the willingness to pay a
one-time fee of $103,265 on cap-subject H-1B receipts. Simulating
various scenarios of unobserved productivity gains achieved by H-1B
petitioners when they hire foreign-born workers, Borjas (2026)
estimated the demand for H-1B visas given alternative values of fees.
The simulation exercise showed that the demand for H-1B visas will not
go below 85,000 for a fees above $100,000.\99\
---------------------------------------------------------------------------
\98\ George J. Borjas, ``The H-1B Wage Gap, Visa Fees, and
Employer Demand,'' NBER Working Paper 34793 (Feb. 09, 2026), https://doi.org/10.3386/w34793.
\99 \ Ibid., See pgs. 22 through 24, Table 6 and Table 7 of
Borjas 2026.
---------------------------------------------------------------------------
4. Fee Elasticity
DHS has analyzed the responses of petitioners to the fee increase
implemented from April 1, 2024 and continues to monitor the recent
$100,000 proclamation payment data. DHS has analyzed the possible
sensitivity of demand for H-1B visa requests to filing fees by
estimating a negative binomial regression model and FY 2021 through FY
2025 data to measure unique petitioners' responses to fee changes over
this time. Short run fee elasticity estimates were generated from the
cross-sectional regression models implemented on each fiscal year while
panel regression models implemented on four fiscal years led to long-
run fee elasticity estimates. The panel regression analysis estimated
the long run fee elasticity of demand for H-1B receipts to be less than
one, hence we concluded that fee elasticity of demand for I-129 H-1B
receipts is inelastic. In the Regulatory Impact Analysis supporting the
2024 Final Rule, USCIS discussed factors that drive this
inelasticity.\100\ USCIS also evaluated information on initial H-1B
registrations from cap-subject petitioners for cap FY 2027. These
analyses are detailed in a separate Technical Appendix published to the
proposed rule's docket. While the technical appendix discusses how
registrations and consular processing receipts have responded to the
$100,000 proclamation payment and prior fee increases, as USCIS has yet
to observe the full current fiscal year behavior of H-1B petitioners,
DHS continues to analyze FY 2027 cap-subject petitions.
---------------------------------------------------------------------------
\100\ See FY 2022-2023 USCIS Fee Rule Regulatory Impact Analysis
(RIA), Section 5.B Price Response to Form I-129, Petition for a
Nonimmigrant Worker and Form I-140, Immigrant Petition for Alien
Workers at https://www.regulations.gov/document/USCIS-2021-0010-0033
(Jan 31, 2024).
---------------------------------------------------------------------------
5. Total Quantified Costs of Proposed Rule
Table 13 shows that USCIS typically selects more than 85,000
beneficiaries/registrations in the lottery, and receives more than
85,000 H-1B cap-subject petitions, to account for denied, rejected or
withdrawn petitions. In any fiscal year, the total number of foreign
workers who may be granted initial cap-subject H-1B nonimmigrant status
during any fiscal year may not exceed 85,000. The proposed $103,265 fee
would result in real costs to cap-subject H-1B petitioners that fund
new activities supporting administration of the lawful immigration
system across multiple agencies.\101\ This fee would be applied
uniformly to all H-1B cap-subject petitioners irrespective of their
size and nonprofit status and is in addition to the current filing and
statutory fees. DHS expects the annual filing volume of cap-subject H-
1B receipts under the proposed rulemaking would be 85,000, a reduction
from the 5-year average of 96,750 (see Table 13). Consequently, DHS
expects the fee would result in petitioners properly filing 85,000 cap-
subject H-1B petitions requiring the $103,265 fee each year.
[[Page 54836]]
The additional $8,777,525,000 in aggregate annual costs to cap-subject
H-1B petitioners due to the proposed rulemaking is estimated as the
difference between the current fees and the proposed additional fee,
multiplied by the estimated annual filing volume of cap-subject H-1B
petition receipts under the proposed rulemaking.\102\
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\101 \ OMB Circular A-4 generally treats fees as transfer
payments when they shift resources between private entities and the
government without necessarily changing total social resources. See
OMB, Circular A-4, ``Regulatory Analysis'' (Sept. 17, 2003), section
on ``The Difference between Costs (or Benefits) and Transfer
Payments.'' In this proposed rule; however, DHS considers the
$103,265 H-1B fee as a real cost to petitioners because it is
intended to finance additional immigration-related activities across
multiple agencies.
\102\ Calculation: 85,000 Annual Filing Volume of Cap-Subject H-
1B Petition * $103,265 fee = $8,777,525,000.
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In table 14, DHS presents the total estimated costs associated with
the rule at 3- and 7-percent discount rates per the OMB circular A-4.
The 10-year discounted costs based on this proposed rule are
approximately $8,777,525,000 annualized, $74,874,068,655 billion at a
3-percent discount rate and about $61,649,662,565 billion at a 7-
percent discount rate.
Table 14--Discounted Costs for the H-1B Fee Over a 10-Year Period of
Analysis
------------------------------------------------------------------------
Year Discounted at 3% Discounted at 7%
------------------------------------------------------------------------
1............................... $ 8,521,868,932 $8,203,294,393
2............................... 8,273,659,157 7,666,630,273
3............................... 8,032,678,794 7,165,075,022
4............................... 7,798,717,275 6,696,331,796
5............................... 7,571,570,170 6,258,254,015
6............................... 7,351,039,000 5,848,835,528
7............................... 7,136,931,068 5,466,201,428
8............................... 6,929,059,289 5,108,599,466
9............................... 6,727,242,029 4,774,392,024
10.............................. 6,531,302,940 4,462,048,620
---------------------------------------
10-year Total............... 74,874,068,655 61,649,662,565
---------------------------------------
Annualized Costs........ 8,777,525,000 8,777,525,000
------------------------------------------------------------------------
Source: USCIS analysis.
6. Benefits of Proposed Rule
Historically, USCIS fee regulations have been structured to recover
only the costs incurred by USCIS in providing immigration adjudication
and naturalization services. The proposed rulemaking would better align
fees with costs of administering the lawful immigration system across
multiple agencies. It would help recover a portion of the federal
government costs attributable not only to USCIS, but also to other
departments and agencies that have statutory responsibilities in
administering the lawful immigration system including activities
carried out by CBP, ICE, EOIR, DOS, and DOL.
B. Regulatory Flexibility Act (RFA)
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as
amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA), Public Law 104-121 (Mar. 29, 1996), requires Federal
agencies to consider the potential impact of regulations on small
businesses, small governmental jurisdictions, and small organizations
during the development of their rules. The term ``small entities''
comprises small businesses, not-for-profit organizations that are
independently owned and operated and are not dominant in their fields,
or governmental jurisdictions with populations of less than
50,000.\103\ An ``individual'' is not considered a small entity and
therefore a rule's impacts on individuals are not considered for RFA
purposes. See 5 U.S.C. 601, 632. In addition, the courts have held that
the RFA requires an agency to perform a regulatory flexibility analysis
of small entity impacts only when a rule directly regulates small
entities.\104\ Consequently, a rule's indirect impacts on a small
entity not subject to the rule are not considered for RFA purposes. The
Initial Regulatory Flexibility Analysis (IRFA) for this proposed rule
focuses on the population of H-1B petitions (Form I-129, Petition for
Nonimmigrant Worker) and H-1B registrations. DHS believes that the
changes in this proposed rule will have a significant economic impact
on a substantial number of small entities that file H-1B initial cap-
subject petitions.
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\103\ A small business is defined as any independently owned and
operated business not dominant in its field of operation that
qualifies as a small business per the Small Business Act, 15 U.S.C.
632.
\104\ See Small Business Administration, A Guide For Government
Agencies, How to Comply with the Regulatory Flexibility Act, https://advocacy.sba.gov/wp-content/uploads/2019/06/How-to-Comply-with-the-RFA.pdf (last visited April 10, 2025).
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1. Initial Regulatory Flexibility Analysis (IRFA)
a. Description of the Reason Why the Action by the Agency Is Being
Considered
DHS is proposing to amend its regulations governing fees for H-1B
cap-subject petitions. DHS believes these changes would allow DHS to
set fees for H-1B cap-subject filers to cover a portion of the costs of
administering the lawful immigration system. In addition, DHS believes
the proposed changes could also have the indirect benefit of better
protecting the wages of similarly situated and highly skilled U.S.
workers.
b. Statement of the Objectives of, and Legal Basis for, the Proposed
Rule
The purpose of this proposed rulemaking is to establish an
additional fee on all H-1B cap-subject petitions, payable at the time
of filing, to generate dedicated revenue to support the costs of
administering the lawful immigration system. The proposed additional
fee, if finalized as proposed, would provide a targeted revenue
mechanism to help recover a portion of the costs incurred by multiple
Federal agencies in processing, adjudicating, and supporting the lawful
immigration system, including USCIS, CBP, ICE, EOIR, DOS, and DOL.
c. A Description and, Where Feasible, an Estimate of the Number of
Small Entities To Which the Proposed Changes Would Apply
Table 15 outlines receipts of 28,649 unique petitioners that filed
for cap-subject H-1B petitions during FY 2025. Of the 28,649
petitioners, 14,541 were determined to be small entities, 8,758 were
determined to be non-small entities, and 5,350 that lacked data to
determine entity size.
[[Page 54837]]
Table 15--Outline of Form I-129, Petition for a Nonimmigrant Worker, H-1B Statistics, FY 2025
----------------------------------------------------------------------------------------------------------------
Parameter Quantity Proportion (%) Comments
----------------------------------------------------------------------------------------------------------------
Population--unique cap--subject entities 28,649 100 Determined by basis for
filing for initial petitions. classification and cap status.
Small entities................................ 14,541 51 Entities among the 28,649 cap-
subject entities considered
small based on revenue or
employee data.
Non-small entities............................ 8,758 31 Number of non-small entities out
of the 28,649 initial receipts.
Missing data.................................. 5,350 18 Entities among the 28,649
initial receipts lacking
revenue, employee count, or
NAICS data.
----------------------------------------------------------------------------------------------------------------
Source: DHS, USCIS, Office of Performance and Quality (OPQ); ELIS and CLAIMS3 databases, queried Mar. 2026,
PAER0020722; USCIS analysis.
Out of the 14,541 entities that were determined to be small
entities, there were 11,312 small entities that met the SBA revenue
threshold and the remaining 3,229 met the employee
threshold.105 106 The quantifiable economic impact,
represented as a percentage, for each small entity is the total
quantified costs of the proposed changes divided by the entity's sales
revenue. DHS divides $103,265 by the revenue for each entity then finds
that 76 percent of small entities would experience a cost increase that
is greater than 1 percent of its revenue.\107\ DHS considers an impact
greater than 1 percent of a small entity's revenue as significant for
purposes of the RFA.\108\ As such, DHS estimates that the proposed rule
would have a significant impact on 11,051 small entities, or 76 percent
of the 14,541 small entities affected by the proposed rule. Based on
this analysis, the changes in this proposed rule would have a
significant economic impact on a substantial number of small entities
that file H-1B cap-subject petitions.
---------------------------------------------------------------------------
\105\ Source: DHS, USCIS, Office of Performance and Quality
(OPQ); ELIS and CLAIMS3 databases, queried Mar. 2026, PAER0020722.;
USCIS analysis.
\106\ U.S. Small Business Administration (SBA) described in the
North American Industry Classification System (NAICS), See SBA size
standards by NAICS code dated Mar. 17, 2023 at https://www.sba.gov/document/support-table-size-standards.
\107\ Id.
\108\ DHS used a baseline threshold of 1 percent of revenues to
determine if the proposed rule will have a significant economic
impact on affected small entities. Office of Advocacy, SBA ``A Guide
for Government Agencies, How to Comply with the Regulatory
Flexibility Act'', Determination of ``Significant Impact'' p 18-21.
Available at https://cdn.advocacy.sba.gov/wp-content/uploads/2019/06/21110349/How-to-Comply-with-the-RFA.pdf.
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d. A Description of the Projected Reporting, Recordkeeping, and Other
Compliance Requirements of the Proposed Rule, Including an Estimate of
the Classes of Small Entities That Will Be Subject to the Requirement
and the Types of Professional Skills Necessary for Preparation of the
Report or Record
The proposed rulemaking would not lead to any additional reporting,
recordkeeping, and other compliance requirements on small entities.
e. An Identification of All Relevant Federal Rules, to the Extent
Practical, That May Duplicate, Overlap, or Conflict With the Proposed
Rule
DHS is aware of potential overlap with the Department of Labor's
Improving Wage Protections for the Temporary and Permanent Employment
of Certain Foreign Nationals in the United States Notice of Proposed
Rulemaking and CBP's 9-11 Response and Biometric Entry-Exit Fee for H-
1B and L-1 Visas Final Rule. However, no conflicts or duplications have
been identified.\109\ Evidence supporting this assessment is provided
in Borjas (2026).\110\ DHS invites the public to provide comments and
information regarding any such rules.
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\109\ DOL's, Improving Wage Protections for the Temporary and
Permanent Employment of Certain Foreign Nationals in the United
States Proposed Rule, See 91 FR 15454 (Mar. 27, 2026) and CBP 9-11
Response and Biometric Entry-Exit Fee Final Rule, See 91 FR 51360
(Aug. 10, 2026).
\110\ The Borjas analysis estimates a distribution of employers'
cost savings from hiring an H-1B worker (Figure 1). A simulation
described on p23 uses three scenarios for low, medium and high
excess demand for the 85,000 visas. USCIS notes Cap FY26
registrations (343,981) are consistent with the ``high'' excess
demand scenario depicted in Figure 2, suggesting the impacts of the
respective rules are complementary, not duplicative or
contradictory.
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f. A Description of Any Significant Alternatives to the Proposed Rule
That Accomplish the Stated Objective of Applicable Statutes and That
Minimize Any Significant Impact of the Proposed Rule on Small Entities
While the proposed changes to the fee schedule for I-129 H-1B cap-
subject petitioners would impose a burden on some prospective
employers, USCIS found no other alternatives that achieved the stated
objectives identified in the preamble's Section III. Background and
Purpose with less burden to small entities. Exempting small entities or
discounting fees creates a sizable perverse incentive for employers to
avoid the fee. This would lead to shortfall in revenue realization and
would fail to meaningfully improve program integrity.
C. Unfunded Mandates Reform Act of 1995 (UMRA)
The Unfunded Mandates Reform Act of 1995 (UMRA) is intended, among
other things, to curb the practice of imposing unfunded Federal
mandates on State, local, and Tribal governments.\111\ Title II of UMRA
requires each Federal agency to prepare a written statement assessing
the effects of any Federal mandate in a proposed rule, or final rule
for which the agency published a proposed rule, which includes any
Federal mandate that may result in a $100 million or more expenditure
(adjusted annually for inflation) in any one year by State, local, and
Tribal governments, in the aggregate, or by the private sector. See 2
U.S.C. 1532(a). The inflation adjusted value of $100 million in 1995 is
approximately $211 million in 2025 based on the Consumer Price Index
for All Urban Consumers (CPI-U).\112\
---------------------------------------------------------------------------
\111\ The term ``Federal mandate'' means a Federal
intergovernmental mandate or a Federal private sector mandate. See 2
U.S.C. 1502(1), 658(5), (6).
\112\ See BLS, ``Historical Consumer Price Index for All Urban
Consumers (CPI-U): U.S. city average, all items, by month,'' https://www.bls.gov/cpi/tables/supplemental-files/historical-cpi-u-202512.xlsx (last visited July 29, 2026). Calculation of inflation:
(1) Calculate the average monthly CPI-U for the reference year
(1995) and the current year (2025); (2) Subtract reference year CPI-
U from current year CPI-U; (3) Divide the difference of the
reference year CPI-U and current year CPI-U by the reference year
CPI-U; (4) Multiply by 100 = [(Average monthly CPI-U for 2025-
Average monthly CPI-U for 1995) / (Average monthly CPI-U for 1995)]
x 100 = [(321.943 - 152.383) / 152.383] = (169.560/152.383) = 1.113
x 100 = 111.3 percent = 111 percent (rounded). Calculation of
inflation-adjusted value: $100 million in 1995 dollars x 2.11 = $211
million in 2025 dollars.
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[[Page 54838]]
This proposed rule does not contain such a mandate, because it
would not impose any enforceable duty upon any other level of
government or private sector entity. Rather, there may be some private-
public partnership investment projects and beneficial downstream
effects to State or local governments. Any downstream effects on such
entities would arise solely due to their voluntary choices, and the
voluntary choices of others, and would not be a consequence of an
enforceable duty imposed by this rule. Similarly, any costs or transfer
effects on State and local governments would not result from a Federal
mandate as that term is defined under UMRA. The requirements of title
II of UMRA; therefore, do not apply, and DHS has not prepared a
statement under UMRA.
D. Executive Order 13132 (Federalism)
This proposed rule does not have substantial direct effects on the
States, on the relationship between the National Government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with section 6
of Executive Order 13132, Federalism, 64 FR 43255 (Aug. 4, 1999), this
proposed rule does not have sufficient federalism implications to
warrant the preparation of a federalism summary impact statement.
E. Executive Order 12988 (Civil Justice Reform)
This proposed rule was drafted and reviewed in accordance with
Executive Order 12988, Civil Justice Reform. This proposed rule was
written to provide a clear legal standard for affected conduct and was
reviewed carefully to eliminate drafting errors and ambiguities, so as
to minimize litigation and undue burden on the Federal court system.
DHS has determined that this proposed rule meets the applicable
standards provided in sections 3(a) and 3(b)(2) of Executive Order
12988.
F. Family Assessment
DHS has reviewed this proposed rule in line with the requirements
of section 654 of the Treasury General Appropriations Act, 1999, Pub.
L. 105-277, 112 Stat. 2681 (1998). DHS has systematically reviewed the
criteria specified in section 654(c)(1), by evaluating whether this
regulatory action: (1) impacts the stability or safety of the family,
particularly in terms of marital commitment; (2) impacts the authority
of parents in the education, nurture, and supervision of their
children; (3) helps the family perform its functions; (4) affects
disposable income or poverty of families and children; (5) only
financially impacts families, if at all, to the extent such impacts are
justified; (6) may be carried out by State or local government or by
the family; or (7) establishes a policy concerning the relationship
between the behavior and personal responsibility of youth and the norms
of society. If the agency determines a regulation may negatively affect
family well-being, then the agency must provide an adequate rationale
for its implementation.
DHS has no data that indicate that this proposed rule would have
any impacts on disposable income or the poverty of certain families and
children, including U.S. citizen children. DHS believes that the
benefits of the new fees justify the financial impact on the family, if
any, and no further actions are required. The proposed additional fee
on certain H-1B petitions would be paid by H-1B petitioners and not H-
1B beneficiaries; therefore, the proposed additional fee would not have
a direct financial impact on the beneficiary or family members of the
beneficiary. Therefore, DHS has determined that the implementation of
this regulation would not negatively affect family well-being and would
not have any impact on the autonomy or integrity of the family as an
institution.
G. Executive Order 13175 (Consultation and Coordination With Indian
Tribal Governments)
This proposed rule does not have tribal implications under
Executive Order 13175, Consultation and Coordination with Indian Tribal
Governments, because it does not have a substantial direct effect on
one or more Indian tribes, on the relationship between the Federal
Government and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian tribes.
H. National Environmental Policy Act
DHS and its components analyze proposed regulatory actions to
determine whether the National Environmental Policy Act (NEPA), 42
U.S.C. 4321 et seq., applies and, if so, what degree of analysis is
required. DHS Directive 023-01 Rev. 01 ``Implementing the National
Environmental Policy Act'' (Dir. 023- 01 Rev. 01) and Instruction
Manual 023-01-001-01 Rev. 01 (Instruction Manual) \113\ establish the
policies and procedures that DHS and its components use to comply with
NEPA.
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\113\ The Instruction Manual contains DHS's procedures for
implementing NEPA and was issued November 6, 2014, https://www.dhs.gov/ocrso/eed/epb/nepa.
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NEPA allows Federal agencies to establish, in their NEPA
implementing procedures, categories of actions (``categorical
exclusions'') that experience has shown do not, individually or
cumulatively, have a significant effect on the human environment and,
therefore, do not require an environmental assessment or environmental
impact statement.\114\ The Instruction Manual, Appendix A lists the DHS
Categorical Exclusions.\115\
---------------------------------------------------------------------------
\114\ See 42 U.S.C. 4336(a)(2), 4336e(1).
\115\ See Instruction Manual, Appendix A, Table 1.
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Under DHS NEPA implementing procedures, for an action to be
categorically excluded, it must satisfy each of the following three
conditions: (1) The entire action clearly fits within one or more of
the categorical exclusions; (2) the action is not a piece of a larger
action; and (3) no extraordinary circumstances exist that create the
potential for a significant environmental effect.\116\
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\116\ Instruction Manual at V.B(2)(a) through (c).
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This proposed rule is limited to amending DHS regulations to
require an additional fee of $103,265 for each H-1B cap-subject
petition filed. This proposed rule is strictly administrative and
procedural and only proposes to amend existing DHS regulations
governing H-1B cap-subject petition fees. DHS has reviewed this
proposed rule and finds that no significant impact on the environment,
or any change in environmental effect would result if the rule is
finalized as proposed.
Accordingly, DHS finds that the proposed amendments to current
regulations clearly fits within categorical exclusion A3 established in
DHS's NEPA implementing procedures as an administrative change with no
change in environmental effect, is not part of a larger Federal action,
and does not present extraordinary circumstances that create the
potential for a significant environmental effect.
I. Paperwork Reduction Act (PRA)
Under the PRA of 1995, 44 U.S.C. 3501-3512, DHS must submit to OMB,
for review and approval, any reporting requirements inherent in a rule,
unless
[[Page 54839]]
they are exempt. This notice of proposed rulemaking does not impose any
new reporting or recordkeeping requirements under the Paperwork
Reduction Act.
List of Subjects in 8 CFR Part 106
Citizenship and naturalization, Fees, Immigration.
Accordingly, DHS proposes to amend chapter I of title 8 of the Code
of Federal Regulations as follows:
PART 106--USCIS FEE SCHEDULE
0
1. The authority for part 106 continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1254a, 1254b, 1304, 1356, 1801-
1815; 48 U.S.C. 1806; Pub. L. 107-609, 115 Stat. 1012; Pub. L. 107-
296, 116 Stat. 2135 (6 U.S.C. 101 note).
0
2. Section 106.2 is revised by adding paragraph (a)(3)(xi) to read as
follows:
Sec. 106.2 Fees.
(a) * * *
(3) * * *
(xii) The following additional fee is required for all H-1B cap-
subject petitions, including those eligible for the advanced degree
exemption under section 214(g)(5)(C) of the Act: $103,265.
* * * * *
Markwayne Mullin,
Secretary, U.S. Department of Homeland Security.
[FR Doc. 2026-17324 Filed 8-24-26; 8:45 am]
BILLING CODE 9111-97-P