Recent federal actions have introduced significant changes to the H-1B program, and employers should prepare now. These updates affect costs, selection odds, and adjudication timelines and may materially impact workforce planning for FY 2027 and beyond.
Below is a summary of the most important developments.
1. New $100,000 H-1B Proclamation Fee and the National Interest Exception (NIE)
A Presidential Proclamation issued on September 19, 2025, introduced a new $100,000 government fee for certain H-1B petitions.
When does the $100,000 fee apply?
The fee applies only if all of the following are true:
- The H-1B beneficiary is outside the United States, and
- The beneficiary does not hold a valid U.S. visa, other than a B-1/B-2 or ESTA.
When does the fee not apply?
The fee does not apply to:
- H-1B petitions requesting a change of status (for example, F-1 or STEM OPT to H-1B), provided the change of status is approved
- Change of employer petitions
- Amendments to existing H-1B petitions
National Interest Exception (NIE)
Employers may request a National Interest Exception (NIE) to avoid paying the $100,000 fee. However:
- USCIS has no deadline to adjudicate NIE requests
- A pending NIE may not be decided in time to meet H-1B filing deadlines
- This creates timing and planning risks, particularly for beneficiaries abroad
Important note: The $100,000 fee is currently the subject of ongoing litigation. While it has survived at least one legal challenge, future changes are possible. Employers and beneficiaries should consult immigration counsel before making international travel decisions.
2. Weighted, Wage-Based H-1B Lottery Selection Beginning FY 2027
On December 29, 2025, the Department of Homeland Security finalized a rule that fundamentally changes how the H-1B lottery operates.
Beginning with the FY 2027 H-1B Cap Lottery, USCIS will no longer select registrations purely at random. Instead, selections will be weighted based on the offered wage level.
How the new weighted system works
Under the Department of Labor’s four wage levels:
- Level I (entry-level): 1 entry
- Level II: 2 entries
- Level III: 3 entries
- Level IV (most experienced): 4 entries
Registrations tied to higher salaries receive more chances in the lottery.
Practical impact
- Entry-level candidates will have lower selection odds
- Higher-paid, more senior roles will be favored
- Startups and smaller employers may be disproportionately affected
- The change applies to all registrations, including those under the advanced degree exemption
Historically, the H-1B lottery occurs in March, though USCIS has not yet announced exact dates for FY 2027.
3. Additional Uncertainty: Proposed Wage Rule Changes
Adding to the complexity, the Department of Labor has proposed changes to how H-1B and PERM prevailing wages are calculated. This proposal is currently under federal regulatory review, and:
- The final outcome and timing are unknown
- The impact on future H-1B filings and lottery strategies remains unclear
Employers should be prepared for potential increases in required wage levels.
4. “Adjudicative Holds” for Beneficiaries From Travel-Ban Countries
USCIS has expanded its internal adjudication policies affecting foreign nationals from countries listed under recent travel bans.
What this means
H-1B petitions may still be filed, but USCIS may place them on an “adjudicative hold” if the beneficiary:
- Was born in, or
- Is a citizen of, one of the listed countries, or
- Holds certain travel documents issued by the Palestinian Authority
Importantly, this policy can apply even if the individual holds citizenship from another country.
While on hold, USCIS may:
- Issue a receipt notice
- Request additional evidence
- Issue a notice of intent to deny…but may delay or withhold a final approval or denial indefinitely.
This policy increases compliance risk and uncertainty for both employers and beneficiaries.
5. Planning Ahead: What Employers Should Do Now
Given these changes, early planning is critical — especially for employers sponsoring individuals currently in:
- F-1 OPT or STEM OPT
- L-1, TN, or O-1 status
- Or candidates located outside the United States
Employers should assess:
- Salary structure and wage level strategy
- Travel risks for foreign national employees
- Alternative visa options where appropriate
6. Potential Government Shutdown and Labor Condition Application (LCA) Delays
Employers should also be aware that a federal government shutdown could disrupt the H-1B process, particularly at the Department of Labor (DOL) stage.
Before an H-1B petition can be filed with USCIS, the employer must obtain a certified Labor Condition Application (LCA) from DOL. During a government shutdown:
- DOL systems may be unavailable or operate with limited staffing
- New LCAs may not be accepted or processed
- Pending LCAs may be delayed, even if already submitted
- H-1B filing timelines may be impacted as a result
Because a certified LCA is a mandatory prerequisite to filing an H-1B petition, any interruption in LCA processing can prevent employers from filing selected H-1B cap cases within required deadlines.
Practical considerations for employers
- Prepare LCAs as early as possible
- Avoid waiting until the end of the filing window
- Monitor shutdown developments closely during cap season
- Have contingency plans in place if DOL processing is interrupted
Government shutdowns are unpredictable, and even short interruptions can have outsize effects during the H-1B cap season. Employers and beneficiaries should work closely with immigration counsel to mitigate timing and compliance risks.
Need Guidance?
CCImmigrationLaw is actively advising employers and individuals on H-1B cap strategy, compliance risks, and alternative employment-based visa options in light of these changes.
This information is provided for general educational purposes only and does not constitute legal advice. Immigration law is highly fact-specific, and outcomes depend on individual circumstances. You should consult with qualified immigration counsel before taking action.
