Updates to H-1B Visa Lottery Rules

Action: The current H-1B lottery running through March 19 is being conducted under new rules issued late last year. Specifically, the Department of Homeland Security’s (DHS) final rule¹ implements a new weighted selection process that prioritizes candidates in positions with higher wage levels. These levels, however, reflect seniority and job complexity within an occupation, not necessarily how much an individual holding the visa will be paid.

Trusted Insights for What’s Ahead^®

• The President has argued that the H-1B program lowers wages for US workers and accused some companies of abusing the program. In September, the President issued a proclamation requiring that employers pay a $100,000 fee for new H-1B visa petitions and directed DHS to revise the process by which H-1B visas are allocated from a random lottery to a system that prioritizes admission of “high-skilled and high-paid” individuals.
• DHS guidance clarified that the fee would not apply to visas for those seeking to extend an H-1B visa they currently hold or to those currently in the US on a different nonimmigrant visa seeking to convert to an H-1B. The government will also refund the $100,000 fee if the petition is denied.
• The fee increase is the subject of a lawsuit involving the US Chamber of Commerce. In December, the US District Court for the District of Columbia upheld the proclamation, allowing the $100,000 fee to take effect for this lottery. However, the ruling is being appealed. In arguments held on March 9, the appellate panel focused on whether the fee is a tax (in which case it would likely be invalid) or a use of Presidential authority to restrict entry into the US.
• The fee is also subject to two other ongoing lawsuits in the US District Courts for the Northern District of California and the District of Massachusetts. In arguments in the California case, an attorney for the government stated that only 70 employers had paid the fee.²
• Leaders in certain states, notably Florida and Texas, have paused H-1B visa applications from state universities and agencies. Governors in both states have criticized the use of taxpayer dollars to hire foreign workers. This affects, for instance, hospitals affiliated with state universities.
• Federal law allows for 65,000 new regular H-1B registrations each year and an additional 20,000 slots for those with advanced degrees. The current lottery, which will apply to visas issued for Fiscal Year 2027, runs from March 4-19. Companies sponsoring selected candidates can submit petitions for visas between April 1 and June 30. US Citizenship and Immigration Services will then determine whether the cap has been met or whether additional lotteries are necessary.
• What this means for business: Changes to the program may significantly impact the human capital and talent strategies for firms that use the H-1B program. The $100,000 fee represents a substantial increase in costs for businesses (filing fees previously ranged from $2,000 to $5,000). Revisions to the lottery also favor more senior talent, which could crowd out early-career individuals. In addition, uncertainty stemming from ongoing legal proceedings could affect firms’ decisions to participate in the lottery or seek other sources of talent.