The American Immigration Lawyers Association (AILA) and the American Immigration Council (Council) have submitted formal comments opposing the Department of Homeland Security’s (DHS) proposed $103,265 fee for certain H-1B petitions.
The organizations submitted their comments in response to a proposed rule published by DHS in the Federal Register on August 25, 2026. They argue that the proposed fee exceeds DHS’s statutory authority, conflicts with the framework established by Congress, and does not adequately address the economic and operational consequences of imposing such a significant charge on H-1B employers.
What Is the Proposed $103,265 H-1B Fee?
Under the proposed rule, DHS would impose a $103,265 fee for the first H-1B petition filed on behalf of an individual subject to the annual H-1B cap, including cases in which the H-1B registration has been selected through the lottery.
AILA and the Council note that the proposed amount is similar to the $100,000 payment requirement introduced under a 2025 Presidential Proclamation and subsequently challenged in federal court.
According to the organizations, the similarity between the two measures raises questions about whether DHS is attempting to establish through regulation a financial requirement that had previously been challenged in litigation.
AILA and the Council Argue That DHS May Lack Statutory Authority
One of the central arguments in the comment concerns INA Sections 286(m) and 286(n).
These provisions authorize DHS to establish fees associated with immigration adjudication and naturalization services and to recover certain costs associated with providing those services.
AILA and the Council argue that the proposed rule goes substantially beyond those functions.
The organizations point out that DHS proposes using revenue from the H-1B fee to support activities involving multiple government agencies and programs, including:
- Immigration investigations and enforcement
- Immigration court operations
- Labor enforcement
- Consular operations
- Border inspection activities
- Other immigration-related government functions
Their position is that Congress specifically distinguished immigration adjudication from enforcement activities when it established the Department of Homeland Security and its component agencies.
Why the Distinction Matters
AILA and the Council argue that accepting DHS’s broader interpretation could allow immigration benefit applicants to finance a wide range of government activities that have only an indirect connection to the adjudication service for which the fee is charged.
They also point to other statutes in which Congress has created specific fee and funding mechanisms for immigration-related programs. In their view, these provisions demonstrate that Congress has previously specified when particular immigration-related activities should be funded through fees.
The organizations therefore argue that DHS should not use the general authority under Section 286(m) to create a substantially broader interagency funding mechanism.
Questions About the $8.8 Billion Revenue Projection
Another major issue raised by AILA and the Council concerns DHS’s calculation of expected revenue.
DHS estimates that approximately 85,000 petitions would be subject to the proposed $103,265 fee. Multiplying those figures produces projected annual collections of approximately $8.8 billion.
AILA and the Council argue that this calculation does not sufficiently account for the possibility that employers could substantially reduce the number of H-1B petitions they file if the proposed fee takes effect.
The 85,000-Petition Assumption
The organizations argue that 85,000 is essentially the statutory H-1B numerical ceiling rather than an economic forecast of employer demand following a fee increase of more than $100,000.
They also point to DHS’s own technical analysis, which acknowledged a short-term decline of more than 90% in consular H-1B receipts following implementation of the $100,000 payment requirement for certain H-1B petitions in 2025.
AILA and the Council contend that DHS should explain how this evidence was considered when estimating future H-1B petition volumes.
Economic Models Suggest Petition Volume Could Decline
The comment also references independent economic analyses that projected substantial reductions in H-1B demand following a fee increase of this magnitude.
According to AILA and the Council, several models cited in the rulemaking record projected demand reductions ranging from 63% to 91%.
They argue that DHS should address these projections and explain how a significant reduction in petition volume could affect:
- H-1B demand
- USCIS resources
- Total fee collections
- Employers seeking specialized workers
- The operation of the H-1B program
The organizations also ask DHS to examine whether a lower fee could potentially produce different aggregate revenue outcomes by preserving a larger volume of H-1B petitions.
Concerns About Funding Multiple Federal Agencies
AILA and the Council also question how the proposed fee would be allocated among federal agencies.
The proposed methodology could direct funding toward activities involving USCIS, ICE, CBP, EOIR, the Department of State, and the Department of Labor.
The organizations argue that DHS has not adequately explained how the proposed system would prevent overlapping funding between existing appropriations, fee accounts, and other statutory funding mechanisms.
They also question how agencies would operate if actual H-1B fee collections were substantially lower than DHS’s projections.
Potential Impact on Employers
The proposed $103,265 charge could have different effects depending on the size and financial resources of an employer.
AILA and the Council argue that DHS’s analysis treats H-1B employers too broadly and does not adequately account for differences among:
- Small businesses
- Nonprofit organizations
- Research organizations
- Larger corporations
- Organizations with limited financial resources
The proposed rule includes exemptions for certain colleges, universities, nonprofit research organizations, and government research organizations. However, the organizations argue that many other employers may not have the financial capacity to absorb a fee exceeding $100,000 for an H-1B petition.
Could Some Employers Face More Than $200,000 in Fees?
The comment also highlights the potential interaction between the proposed $103,265 fee and the separate $100,000 H-1B payment requirement associated with the 2025 Presidential Proclamation.
AILA and the Council state that, depending on the circumstances and the outcome of ongoing litigation, some employers processing certain cap-subject H-1B cases through consular processing could potentially face both charges.
That could result in a combined financial burden of approximately $203,265.
The organizations argue that DHS has not sufficiently analyzed the consequences of such a combined financial obligation or explained why both charges would be necessary.
AILA and the Council Challenge the Fee as an Unlawful Tax
A further argument in the submission is that the proposed assessment could function more like a tax than a traditional user fee.
AILA and the Council cite Supreme Court decisions addressing the distinction between permissible user fees and broader revenue-raising measures.
Their argument is that a legitimate user fee should have a sufficient connection to the service or benefit provided to the person or organization paying the charge.
The organizations contend that the proposed H-1B fee would finance activities extending beyond the adjudication of the specific H-1B petition, including immigration enforcement, border operations, immigration court activities, and other governmental functions.
They therefore argue that DHS must identify clear statutory authority for such a broad financial assessment.
Concerns Over the 30-Day Public Comment Period
AILA and the Council also object to the 30-day comment period established for the proposed rule.
They argue that the proposal is economically significant and technically complex, involving an estimated $8.8 billion in annual charges and a proposed funding structure spanning multiple agencies.
The organizations contend that stakeholders need sufficient time to evaluate the proposal, review the underlying data, consult legal and economic experts, and prepare evidence-based comments.
They therefore request that DHS provide at least 60 days for public comments if the proposal is not withdrawn.
What AILA and the Council Are Asking DHS to Do
Among other requests, AILA and the Council call for DHS to:
- Provide stronger empirical support for the 85,000-petition assumption.
- Model how different levels of H-1B petition volume would affect projected collections.
- Address evidence showing substantial declines in H-1B demand following the earlier $100,000 payment requirement.
- Consider whether alternative policies or a lower fee could accomplish DHS’s objectives with less burden.
- Explain how funds would be received, allocated, and controlled across agencies.
- Provide greater transparency regarding the methodology used to calculate the proposed fee.
- Extend the public comment period to at least 60 days.
What This Means for H-1B Employers and Applicants
The proposed $103,265 H-1B fee is currently the subject of a regulatory proposal and opposition from AILA and the American Immigration Council.
The organizations’ submission does not itself change the H-1B fee structure. Instead, it represents formal comments submitted as part of the federal rulemaking process.
For employers considering future H-1B sponsorship, the proposal highlights the importance of monitoring developments from DHS and USCIS, particularly regarding the final rule, potential litigation, applicable exemptions, and any changes to the fee structure.
Employers should evaluate individual cases based on the rules and guidance in effect at the time of filing and obtain qualified immigration counsel where appropriate.
Conclusion
AILA and the American Immigration Council have urged DHS to withdraw the proposed $103,265 H-1B fee, arguing that the proposal raises significant questions involving statutory authority, cost allocation, projected petition volume, economic impact, and the federal rulemaking process.
The organizations have also requested additional analysis and a longer public comment period if DHS proceeds with the proposal.
Because the matter involves both regulatory action and ongoing litigation concerning related H-1B payment requirements, employers and immigration stakeholders should continue monitoring official DHS, USCIS, Federal Register, and court developments for further updates.
Immigration Fleet Law Firm