Who Actually Pays the $100,000 H-1B Presidential Fee?

If you're an international graduate trying to land an H-1B in 2026, the instinct is obvious: offer to cover the fee yourself. If a startup can't absorb a six-figure surcharge, why not take a lower salary or pay it out of savings to make the sponsorship happen?

The answer sits in US labor law, not in what either side is willing to agree to.

📊 Reading the 2026 H-1B Fee Structure Employer Liability Matrix

The table above breaks down every fee tied to a new H-1B petition and who is legally on the hook for each one. Four of the five components — the base I-129 filing fee, the ACWIA training fee, the fraud prevention fee, and the asylum program fee — total roughly $3,380 and have always been the sponsoring employer's responsibility by law. None of them can be passed to the employee in any form, including a lower negotiated salary.

The $100,000 Presidential Proclamation surcharge follows the same rule on paper: employer-only, no exceptions. Its "Enjoined / Pending Appeal" status reflects where things actually stand as of this week. A Massachusetts district court struck the fee down in June, the government asked the First Circuit to keep collecting it during the appeal, and the First Circuit said no in late July. So the fee isn't currently being collected, but the underlying case is still working its way through the courts, which is why it's marked enjoined rather than repealed.

The premium processing fee is the one line that works differently. It's the only cost on this table an employee can legally pay, and only in a narrow circumstance: when premium processing is requested purely for the employee's own convenience rather than as part of the employer's standard practice for the role.

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The employer burden is not negotiable

Under the Immigration and Nationality Act and Department of Labor regulations, the cost of sponsoring an H-1B worker is structured as an employer expense by design. The government requires companies to show they have a genuine, financially viable need for the hire — and that requirement collapses if the worker is quietly funding their own sponsorship.

If an employer allows or pressures an employee to cover the base filing fee, the ACWIA training fee, or the $100,000 surcharge, regulators treat it as an illegal deduction from the required prevailing wage. In plain terms: wage theft. If USCIS or DOL catches it, the visa can be revoked and the employer faces fines along with possible debarment from future immigration filings.

Where the $100,000 fee actually stands in 2026

The law is clear on who pays. Whether the fee is even collectible right now is a separate, messier question.

A Massachusetts district court vacated the fee on June 8, 2026, ruling it functioned as an unauthorized tax that the executive branch had no authority to impose. The government asked for a stay while it appealed. On July 24, 2026, the First Circuit turned that request down, finding the government hadn't shown it was likely to win on the merits. As things stand, the fee is not enforceable — USCIS should not be collecting it on covered petitions.

That's not the end of the story. The underlying appeal is still active, and immigration lawyers are telling startups to plan as though the fee could return, possibly retroactively. That uncertainty alone has already frozen hiring pipelines for overseas candidates and F-1 OPT students at companies unwilling to bet on a court outcome.

Helpful links from the Gnosis content team

The Employer Burden: Why Bootstrapped Startups Are Dropping H-1B Sponsorship in 2026 — a deep dive into the financial matrix reshaping startup sponsorship decisions.

The 2026 US Tech Paywall: Modeling the $100,000 H-1B Fee and the New Wage-Weighted Lottery — how the (currently blocked) fee interacts with the new wage tiers.

Bypassing the H-1B Lottery: The 2026 Guide to the O-1A Visa for Startup Founders — how top-tier talent is sidestepping the H-1B process entirely.

📚 Official Sources & Data Verification (2026)

All details regarding H-1B fee allocation, Employer Burden Laws, and ongoing litigation are verified against 2026 updates from the Department of Homeland Security (DHS) and federal court rulings:

• Employer Burden Law: The Immigration and Nationality Act (INA) strictly prohibits employers from passing H-1B filing fees, including the ACWIA training fee and the Presidential Surcharge, to the employee, considering such actions as illegal wage deductions.
• The $100,000 Surcharge: Presidential Proclamation 10973, issued in September 2025, imposed a $100,000 fee on certain new H-1B petitions.
• Current Legal Injunction (July 2026): The U.S. District Court for the District of Massachusetts vacated the $100,000 fee requirement in June 2026, ruling it an unauthorized tax. In late July 2026, the U.S. Court of Appeals for the First Circuit denied the government's request to stay the lower court's ruling, meaning the fee is currently legally invalidated and unenforceable.

Frequently asked questions

Q: What happens if my visa is denied after the employer pays the fee?

A: USCIS guidance has consistently stated that if a petition subject to the $100,000 payment is denied, the fee gets refunded in full. Standard filing fees don't work this way — they're non-refundable — but the $100k surcharge was set up differently from the start.

Q: Does this fee apply to H-1B transfers or to students changing from F-1 to H-1B?

A:No, in both cases. The fee is tied specifically to consular processing — petitions for beneficiaries applying from outside the US. A change of status filed while the person is already in the US, including F-1 to H-1B, is exempt as long as USCIS approves it. A change of employer for someone already holding H-1B status is exempt too. The one thing to watch: if a change-of-status request gets denied and the case converts to consular processing instead, the fee can still apply at that point.

Q: Can I take a lower salary instead of paying the fee directly?

A: No. Employers are required to pay the higher of the "actual wage" for similar workers at the company or the DOL's "prevailing wage" for the role. Accepting a lower salary to offset an employer's immigration costs isn't a workaround — it's the same violation described above, just structured differently.