Key Points
- New $100,000 H-1B proclamation fee and the National Interest Exception: A new, $100,000 fee applies unless a National Interest Exception (NIE) is approved, when the H-1B beneficiary is both outside the United States and without a valid visa (other than B-1/B-2 or ESTA), while change-of-status and change-of-employer/amendment filings are excluded.
- Weighted, wage level-based H-1B selection for FY 2027: U.S. Citizenship and Immigration Services (USCIS) will weight lottery entries by offered wage level — Level I (entry), Level II (somewhat experienced), Level III (mid-level), Level IV (very experienced) — favoring higher-paid roles and likely reducing selections for entry-level candidates while tilting the odds against startups and smaller employers.
- “Adjudicative hold” for travel-ban countries creates uncertainty and expands compliance exposure: USCIS will accept H-1B petitions but place cases on an adjudicative hold for beneficiaries born in, or citizens of, any of 39 listed countries and holders of certain Palestinian Authority travel documents.
The Trump Administration has implemented major changes in immigration law, and “H-1B Cap Season” is no exception. Employers need to familiarize themselves with these changes now so they can make informed decisions and take steps to ensure their workforce needs are met.
Employers interested in sponsoring foreign nationals for specialty (professional, bachelor's degree level) occupations can apply for these visas only once per year, for a limited time. Since the number of visas issued is capped, recipients are selected by lottery. USCIS has not announced the specific registration dates for the H-1B Cap Lottery, but historically, the lottery has been held in March.
The major new factors that can impact registrations in the FY 2027 H-1B Cap Lottery, and selected other petitions, are summarized below.
Who Is Subject to the New $100,000 H-1B Proclamation Fee?
Under a Sept. 19, 2025 Presidential Proclamation, an H-1B petitioner must pay USCIS a $100,000 fee or obtain approval of a National Interest Exception (NIE) when a sponsored H-1B beneficiary is both:
- Outside the United States and
- Lacks a valid H-1B visa (or visa to be in the US, other than a B-1/B-2 or ESTA).
The $100,000 fee is NOT required for petitions involving a change of status (i.e.: from F-1 or STEM to H-1B) where the request for change of status is granted or for petitions for change of employer/amendments.
The $100,000 H-1B fee is the subject of pending litigation, so things may change. However, the fee has survived one challenge in court. For this reason, employers planning to register in the upcoming lottery and/or individuals who are in the U.S. and will be registered in the lottery should seek the counsel of an immigration attorney before the subject individuals make any plans to travel abroad.
Note that there is no time limit for USCIS to adjudicate an NIE request. This could mean that a pending NIE decision is not rendered in time to meet the filing deadline for registrations selected in the H-1B cap lottery.
How Will Weighted, Wage Level-Based H-1B Selection Affect Applicants?
On Dec. 29, 2025, the Department of Homeland Security published a final rule that amends the long-standing H-1B lottery random selection process. Beginning with the FY 2027 H-1B Cap Lottery, USCIS will select foreign nationals in the H-1B lottery using a weighted H-1B selection process that favors registrants with H-1B job opportunities at a higher wage level (i.e.: higher salaries). This new selection process will apply to all registrations including those for the advanced degree exemption. In effect, this rule will reduce the number of entry-level foreign nationals selected in the FY2027 H-1B lottery. It is also expected to tilt the odds against startup companies and smaller businesses. The lottery has historically occurred in March however the dates for FY 2027 H-1B Cap Lottery have not yet been announced.
The Department of Labor’s (DOL’s) current wage level structure includes four levels that are based on a position’s complexity/requirements when evaluated against normal minimum education/experience requirements. Under the new weighted-selection rule:
- If an employer’s salary offer meets the Level I wage (entry-level), the H-1B registration will be entered into the lottery one time.
- If an employer’s salary offer meets the Level II wage (somewhat experienced), the H-1B registration will be entered into the lottery 2 times.
- If an employer’s salary offer meets the Level III wage (mid-level), the H-1B registration will be entered into the lottery 3 times.
- If an employer’s salary meets or exceeds the Level IV wage (very experienced), the H-1B registration will be entered into the lottery 4 times.
This will have a significant impact on all registrations by favoring higher paying jobs.
Adding to the uncertainty, the Department of Labor has proposed changing the way H-1B and PERM wages are calculated. In December, DOL sent a proposed rule laying out its proposal to the Office of Management and Budget. As of the date this alert was posted, the proposed rule is pending EO 12866 Regulatory Review with no clear timing. The potential impact on FY 2027 H-1B Cap Lottery Registrations and/or H-1B petitions filed after selection in the lottery can’t yet be determined.
How Are H-1B Petitions for Foreign Nationals From Travel Ban Countries Affected?
USCIS has expanded the scope of its adjudicative policies for foreign nationals from countries who appear on the administration’s travel-ban list. H-1B Petitions can be submitted but will be placed on an “adjudicative hold” if the foreign national beneficiary was born in, or is a citizen of, one of the 39 countries listed on the January 2026 travel ban list, and/or for a foreign national who carries a travel document issued by or endorsed by the Palestinian Authority.
Importantly, USCIS’s policy is more restrictive than the actual travel ban — it includes individuals born in certain countries, regardless of whether they hold a second citizenship/passport. The “adjudicative hold” allows USCIS to process a filing and issue a receipt, request for evidence, and/or notice of intent to deny, but not necessarily issue a final decision such as approval or denial. This includes individuals born in and/or citizens of the countries listed on the June 2025 and January 2026 travel ban lists, including (as of today): Afghanistan, Angola, Antigua and Barbuda, Benin, Burkina Faso, Burma, Burundi, Chad, Republic of Congo, Cote d’Ivoire, Cuba, Dominica, Equatorial Guinea, Eritrea, Gabon, The Gambia, Haiti, Iran, Laos, Libya, Malawi, Mali, Mauritania, Niger, Nigeria, Senegal, Sierra Leone, Somalia, South Sudan, Sudan, Syria, Tanzania, Togo, Tonga, Turkmenistan, Venezuela, Yemen, Zambia, and Zimbabwe; and the Palestinian Authority. Employers that will be sponsoring H-1B status for a foreign national who is born in and/or is a citizen of one of the above listed countries, should contact immigration counsel as soon as possible to discuss risks/next steps.
Employers who need assistance with the H-1B lottery or any other employment visa processes should also contact experienced immigration law counsel. This is particularly true for employers with current employees on F-1 OPT, STEM, L-1, TN, O-1, or other visa classifications, whom they would like to sponsor or that have any employees/candidates abroad they would like to sponsor to bring to the United States, or candidates in the U.S. they would like to sponsor.
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