This year’s H‑1B cap season will operate under a new regulatory framework that changes how registrations are evaluated. Early planning is critical to maximize the likelihood of H-1B lottery selection and minimize financial and compliance risk before the expected March 2026 registration period.
New $100,000 Fee for Certain Petitions
In September 2025, the White House announced a $100,000 supplemental fee for certain new H-1B petitions filed after September 21, 2025. This fee generally applies when a beneficiary is overseas and must obtain an H‑1B visa abroad via consular processing or is ineligible to change status in the U.S. as a result of a status violation or other issue. The fee should not apply, however, if U.S. Citizenship and Immigration Services (USCIS) approves a valid change‑of‑status request. Employers must pay this fee upfront.
Some beneficiaries may qualify for a National Interest Exception (NIE), though approval is discretionary, may take time, and cannot be guaranteed. The fee has survived initial legal challenges but remains the subject of ongoing litigation.
Shift to a Wage‑Weighted Selection Process
The USCIS has implemented a new weighted, wage-based selection process, effective February 27, 2026. While the selection process remains random, higher salaries will increase the chances of selection. The number of lottery entries a registration receives will correspond to the offered salary relative to the Department of Labor’s four-level wage scale: Level 1 (entry-level) = 1 entry, Level 2 (some experience) = 2 entries, Level 3 (mid-level) = 3 entries, and Level 4 (highly experienced) = 4 entries.
OEWS wages can be looked up by going to DOL’s wage library: OFLC Wage Search | Flag.dol.gov. Employers must provide the correct occupational classification and geographic area of intended employment at the time of registration, as USCIS may review this information post-selection and could deny petitions if registrations were incorrectly represented.
Action Steps for Employers:
- Identify potential H-1B candidates: Review F-1 OPT/STEM OPT students, H-4 or L-2 work-authorized employees, TN/E/H-1B1 employees, and employees nearing maximum time limits in other visa categories.
- Assess positions and salaries: Determine the correct DOL wage level for each position, including multiple worksites, to accurately calculate lottery entries.
- Document post-registration changes: Monitor salary, promotion, or worksite changes after registration and maintain documentation to ensure compliance with weighted lottery rules.
- Evaluate fee exposure: Determine if the $100,000 fee applies and whether an NIE request is appropriate, particularly for employees abroad or outside change-of-status eligibility.
- Consider contingency planning: Develop alternative sponsorship strategies for entry-level candidates or employees who may face reduced lottery odds, including alternate visa categories or temporary staffing options. Contact our office to discuss further if you require assistance.