Administration Advances H-1B Policy Changes as Court Upholds $100,000 Fee

On Dec. 23, the Trump administration announced plans to replace the random H-1B lottery with a weighted selection system prioritizing registrations tied to higher wages and advanced skills, rather than selecting petitions purely by chance. Under the proposed approach, U.S. Citizenship and Immigration Services would rank registrations using factors including compensation and skill levels, with the stated goal of directing visas toward higher-paying positions.

On Dec. 24, a federal court rejected a lawsuit brought by the U.S. Chamber of Commerce seeking to block the administration’s proposed $100,000 fee for certain H-1B filings. The ruling allows the administration to proceed with implementation of the fee, dealing a setback to business groups challenging the policy.

Key Implications of These Developments Include:

• Beginning with the selection process in 2026, H-1B registrations are more likely to be selected for positions that pay higher wages or require greater skills and experience.

• Registrations will be compared within the standard occupational code and geographic area of intended employment.    

• Higher-paying positions requiring greater skill and experience will receive more entries in the lottery compared to lower-paying and lower-skilled positions.

• Employers seeking to hire noncitizens who are outside the U.S. as H-1B workers, or noncitizens who are currently in the U.S. but are not eligible for a change of status or extension of stay, must pay a $100,000 fee with the petition.

Key Action Items for Employers:

• Greater emphasis on wage strategy. Employers may need to reassess offered wages for H-1B roles, as higher compensation levels could materially improve selection odds under a weighted cap system, particularly for competitive occupations.

• Increased uncertainty. The new weighted selection process may dramatically alter H-1B selection odds, especially for lower-paid and less experienced workers.

• High cost of hiring certain new H-1B workers. The federal court decision upholding the $100,000 fee for new H-1B workers means that it may be prohibitively expensive to hire first-time H-1B workers who are outside the U.S., or who are in the U.S. and are not able to receive a change of status or extension of stay. The fee does not apply to workers who are currently in H-1B status or who are in a different status and are eligible to change to H-1B status (e.g., foreign students in good standing). 

Bottom Line

We expect the registration period for the next H-1B lottery to open in February or March 2026. Our team can help employers and employees navigate the complexities of the lottery, improve selection chances where possible and develop contingency plans and alternatives. We can also help analyze the applicability of the $100,000 fee for workers and candidates and identify potential exemptions and alternatives. Contact any member of our team for assistance.

Article courtesy of Warner Norcross + Judd.

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