It needn’t be a legal brief, and it matters.

DHS isn’t counting votes. It must consider what it receives and respond to significant issues before finalizing the rule. If the rule is challenged, the comments become part of the court record, and arguments nobody raised are often treated as forfeited.

That matters here. In June, a federal court in Massachusetts vacated DHS’s implementation of last year’s $100,000 proclamation fee, holding it was effectively a tax the President can’t impose without Congress and that the agencies skipped required rulemaking steps. That ruling and a D.C. federal court decision upholding the fee are both on appeal. On Friday, the President extended the proclamation through September 21, 2027. This time, DHS is using notice-and-comment rulemaking, so this record will be central to any challenge.

What makes a comment useful:

• Your own facts. How many cap-subject petitions you file, the roles, the pay, and what you’d do if the fee took effect: hire elsewhere, offshore the work, or leave positions unfilled.

• A response to DHS’s reasoning. DHS says the fee recovers a portion of immigration-system costs and would discourage hiring H-1B workers over qualified U.S. workers without a real need. If your experience differs, explain.

• Where the money goes. About a third would fund the immigration courts, which hear removal and asylum cases, not H-1B petitions. Roughly another third would go to USCIS, the rest to ICE, Labor, State, and CBP. If H-1B employers shouldn’t fund unrelated agencies, say so.

• The scope. The fee would cover every cap-subject petition, including the U.S. advanced-degree exemption, but not cap-exempt filings. Explain the effect on hiring graduates of American universities.

• The overlap. DHS acknowledges that an employer subject to both this fee and the $100,000 payment would owe both. That payment applies mainly to workers outside the U.S. and hasn’t been collected since the June ruling. If it becomes collectible again, one cap-subject hire from abroad could top $200,000 in these two payments. Say what that means for you.

• The short window. DHS allowed 30 days for a rule expected to raise about $8.8 billion a year. Executive Order 12866 calls for at least 60 days in most cases. It creates no enforceable rights, but it’s a fair point.

A focused one-page comment filed on time beats a thorough one filed late.

The mechanics:

• regulations.gov, Docket No. USCIS-2026-0298

• By 11:59 p.m. Eastern, September 24

• In English, or with an English translation

• Emails, letters, and mailed or hand-delivered comments don’t count

• Comments are posted publicly as submitted; omit anything you wouldn’t want competitors to see

***Disclaimer: This post is for general informational purposes and does not constitute legal advice. Every case is fact specific. Please contact our office to discuss how this decision may affect your individual situation.***