The H-1B visa program has long been a cornerstone of the U.S. workforce, helping employers attract highly skilled professionals in technology, healthcare, research and higher education. But in recent months, the H-1B landscape has been anything but stable. From sweeping policy changes to litigation and evolving compliance standards, employers must navigate a rapidly shifting environment.
At Harris Beach Murtha, our Immigration Practice Group helps institutions and businesses stay ahead of these developments. Below are key insights from our recent webinar, H-1B Clarity Amid Change, highlighting what employers need to know heading into FY2026.
- Understanding H-1B Basics and the Cap
The H-1B program allows U.S. employers to hire foreign professionals in “specialty occupations” — roles requiring at least a bachelor’s degree in a specific field. H-1B status is employer-specific and typically granted in up to three-year increments, with a six-year maximum. However, visa availability is limited. Each year, 65,000 new H-1B visas are issued through the H-1B lottery (“cap”), with an additional 20,000 reserved for individuals with a master’s degree or higher from a U.S. college or university. Annual demand far exceeds these numbers, with roughly 400,000–500,000 entries submitted through the lottery in recent cycles.
- Cap-Exempt Strategies: The Campus Connection
Certain employers are not subject to the annual H-1B quota, including colleges, universities, nonprofit or governmental research organizations, and nonprofit entities affiliated with or related to institutions of higher education. These relationships often arise where the nonprofit furthers the educational or research mission of a college or university. To qualify, a petitioner must document a formal affiliation agreement with a college/university, shared governance, or joint research or educational objectives.
- Thinking Concurrently: Dual Employment as a Workaround
H-1B professionals employed by a cap-exempt organization may also hold concurrent employment with a cap-subject employer — without triggering the lottery — so long as their exempt employment remains bona fide and ongoing. This concurrent strategy enables collaboration between universities, hospitals and private employers; helps startups and tech firms hire talent from academia; and bridges employment gaps during cap-season uncertainty.
- Location Matters: When Worksite Ties Unlock Exemption
H-1B cap-exemption can also extend to private employers whose H-1B employees work at a qualifying cap-exempt institution — provided the work directly supports the institution’s mission. This may include joint research projects, grant-funded collaborations or clinical teaching at a university hospital. In today’s hybrid world, USCIS has clarified that this exemption can include on-site, remote or hybrid arrangements — as long as the duties clearly further the educational, nonprofit or research objectives of the host institution.
- The $100,000 H-1B Fee Controversy
A presidential proclamation issued Sept. 19, 2025, introduced a $100,000 supplemental payment for some H-1B petitions, creating significant confusion. Initially aimed at limiting H-1B use in the tech industry, the rule also swept up cap-exempt employers such as hospitals and universities. Guidance issued on Oct. 20, 2025, clarified that the fee applies only to new petitions filed on or after Sept. 21, 2025, for beneficiaries outside the United States without a valid H-1B visa. It does not apply to amendments, extensions or change-of-status filings (e.g., F-1 to H-1B or J-1 to H-1B). Employers must submit the payment via pay.gov or seek a national interest exception from DHS.
- Litigation and Legal Challenges
Two major lawsuits challenge the legality of the $100,000 payment: Global Nurse Force v. Trump, led by academic and healthcare organizations, and U.S. Chamber of Commerce v. DHS, focusing on the burden to small and midsize employers. Both cases could determine whether the fee survives and could redefine executive authority in immigration policy.
- The Weighted H-1B Lottery Proposal
USCIS has proposed replacing the random lottery with a weighted selection system that favors higher-paid positions. Under this model, petitions offering Level IV wages would receive four entries, while Level I petitions would receive one. If implemented, this change would incentivize higher wages and alter recruiting strategies across industries.
- Visa Processing Updates: Interviews Now Mandatory
As of September 2025, the Department of State ended the pandemic-era ‘dropbox’ renewal option. All H-1B and other nonimmigrant visa applicants must now attend an in-person interview at a U.S. embassy or consulate, in their country of nationality or residence. This change may cause longer wait times, so employers and employees should plan early for consular appointments.
Key Takeaways for Employers
- Plan early and anticipate longer processing times.
- Evaluate cap-exempt and concurrent strategies to reduce lottery dependence.
- Monitor litigation related to the $100,000 fee.
- Seek legal guidance before filing, especially for exemptions or national interest cases.
