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On Sept. 19, 2025, President Donald Trump signed a proclamation establishing a new $100,000 payment requirement for certain H-1B filings, effective Sept. 21, 2025. While U.S. Citizenship and Immigration Services (USCIS) has since issued clarifying guidance, inconsistent enforcement by U.S. Customs and Border Protection (CBP) is creating questions and, in some cases, improper denials of entry.

The rule’s applicability turns primarily on when the H-1B petition was filed and where the beneficiary is located at the time of filing. The following fact patterns illustrate when the $100,000 payment is required, and when it is not.

1. H-1B petition filed after Sept. 21, 2025, for a beneficiary abroad: Subject to the fee.

This is the baseline rule. Any new H-1B petition filed on or after Sept. 21, 2025, for a beneficiary who is outside the United States and will be admitted under the new petition requires payment of the $100,000 fee.

Example: A U.S. employer files a new H-1B petition on Oct. 1, 2025, for a software engineer residing in India. The payment must accompany the petition.

2. Beneficiary abroad but holding a valid H-1B visa from a prior employer: Subject to the fee.

Even if the beneficiary already holds a valid H-1B visa in their passport from a previous employer, a new petition filed on or after Sept. 21, 2025, for a beneficiary who is abroad will trigger the fee, regardless of when travel occurs or whether this will be the individual’s first entry under that petition.

Example: Company B files a new petition on Oct. 5, 2025, for a candidate in the United Kingdom who still holds a valid H-1B visa from Company A. Because the petition was filed after the new fee’s effective date while the beneficiary was abroad, the $100,000 payment applies.

3. Petition filed before Sept. 21, 2025, regardless of when travel occurs: Not subject to the fee.

Petitions filed before the effective date are exempt, even if approval of the petition or travel occurs afterward. CBP officers have, in some cases, misapplied this rule. Employers may wish to ensure travelers carry proof of the petition filing date.

Example: A petition filed on Sept. 15, 2025, is approved in October 2025 and the worker enters the United States in November 2025. The filing predates the rule, so the payment is not required.

4. H-1B extensions, amendments, and change of employer filings within the United States: Not subject to the fee.

USCIS has confirmed that the new payment “does not change any payments or fees required to be submitted in connection with any H-1B renewals.” USCIS guidance confirmed this logic also applies to change of employer and amendment filings made for workers already in valid H-1B status inside the United States, since no new visa issuance or admission occurs.

Example: A systems analyst in H-1B status with Company A changes jobs to Company B, which files a new H-1B petition on Oct. 3, 2025, while the worker remains in the United States throughout the transaction. The payment is not required.

5. Change of status filings from within the United States: Not subject to the fee.

Beneficiaries changing status (for example, from F-1 to H-1B) who are in the United States when the petition is filed are not subject to the $100,000 payment, even if USCIS approval occurs after Sept. 21, 2025.

Example: A student in F-1 status is selected in the FY 2026 H-1B lottery, and the employer files a change-of-status petition on Sept. 15, 2025. Because the petition was filed before the effective date and the beneficiary remains in the United States, no payment is due.

6. Cap-exempt employer filing after Sept. 21, 2025, for a beneficiary abroad: Subject to the fee.

USCIS has confirmed that universities, nonprofit research institutions, and affiliated entities, though cap-exempt under the H-1B program, are not exempt from the $100,000 payment if filing on or after Sept. 21, 2025, for a beneficiary abroad. The only potential relief is through the proclamation’s national interest exception, which USCIS has stated is “extraordinary in scope” and limited to cases demonstrating a direct and substantial benefit to U.S. national security, critical infrastructure, or public health.

Example: A nonprofit medical research organization files an H-1B petition for a scientist abroad on Oct. 5, 2025. The fee applies unless USCIS grants a national interest exception.

7. Beneficiary in the United States who departs while H-1B petition is pending: Subject to the fee.

If a change of status petition is filed for a beneficiary inside the United States and the beneficiary travels abroad before adjudication, the case will convert to consular notification. USCIS has confirmed such cases will trigger the $100,000 fee. Affected beneficiaries may wish to avoid traveling abroad until their H-1B petition is approved.

Example: An F-1 student with a pending H-1B change of status petition travels abroad for family reasons. If the case converts to consular processing, the fee will apply upon visa issuance.

8. Beneficiary obtains new visa stamp abroad based on an H-1B petition filed before Sept. 21, 2025: Not subject to the fee.

A beneficiary who applies for a new H-1B visa stamp at a U.S. consulate abroad using an H-1B petition that was filed before Sept. 21, 2025, is not required to pay the $100,000 fee upon reentry. The key factor is the petition’s filing date, not the visa issuance date. Some CBP officers have incorrectly applied the rule in these situations.

Example: A beneficiary’s H-1B petition was approved in April 2025. In November 2025, the beneficiary applies for a new visa stamp at the U.S. Consulate in Paris, France and reenters the United States. The $100,000 payment does not apply, because the petition was filed before the new fee’s effective date.

9. Beneficiary abroad after six years in H-1B status due to PERM delay or government shutdown: Subject to the fee.

If an H-1B worker reaches the six-year limit and must depart the United States because a PERM application is on hold or delayed due to a reduction in force or government shutdown, any subsequent petition filed to return to H-1B status after departure is treated as a new petition. If the filing occurs on or after Sept. 21, 2025, and the beneficiary is abroad at the time of filing, the $100,000 payment applies.

Example: A beneficiary in valid H-1B status reaches the six-year limit in August 2025 and departs the United States after a PERM filing is paused. In October 2025, the employer files a new H-1B petition for consular processing so the individual may return once the PERM issue resolves. Because the new petition was filed after Sept. 21 while the worker was abroad, the $100,000 fee applies.

How and When to Pay the $100,000 Fee

USCIS now requires petitioners to submit the $100,000 payment through Pay.gov before filing the H-1B petition. Payment must be scheduled using the online form. Proof of payment, or evidence of an approved exception from the secretary of homeland security, must accompany the H-1B petition at the time of filing. Petitions USCIS considers to be subject to the payment will be denied unless evidence of payment is provided. USCIS has not stated whether it will refund the $100,000 fee if the petition is ultimately denied, withdrawn, or revoked.

Key Takeaways

The $100,000 payment applies to new H-1B petitions filed on or after Sept. 21, 2025, for beneficiaries abroad who will be admitted under that petition, including those filed by cap-exempt institutions. The only potential relief is through the limited national interest exception, which USCIS states in its guidance is reserved for “extraordinary rare circumstances” where “that no American worker is available to fill the role, that the [H-1B] worker does not pose a threat to the security or welfare of the United States, and that requiring the petitioning employer to make the payment on the [H-1B worker’s] behalf would significantly undermine the interests of the United States.”

Extensions, renewals, change of employer filings, amendments, pre-existing petition holders reentering under the same petition, and in-country change of status cases are excluded. Because CBP officers may lack full implementation guidance, even exempt travelers may wish to carry a copy of USCIS’ recent guidance and evidence confirming petition filing date and status.

USCIS has released new implementation guidance on the $100,000 supplemental fee established under the Sept. 19, 2025, Presidential Proclamation “Restriction on Entry of Certain Nonimmigrant Workers.” The update provides clarity for U.S. employers and their HR and legal teams: most domestic H-1B filings will not be subject to the new fee, while exceptions for overseas hires will be approved only in extraordinarily rare circumstances.

Effective Date and Scope

The $100,000 fee applies only to new H-1B petitions filed on or after Sept. 21, 2025, for foreign nationals outside the United States who will require visa issuance and initial entry. Petitions filed before that date are not subject to the payment. USCIS confirmed that change of status petitions for individuals already in the United States, as well as amendments, extensions, and change of employer filings, are exempt. This means the majority of H-1B activity, including extensions and transfers filed domestically, may proceed without additional cost or disruption.

An example of an H-1B petition subject to the $100,000 fee would be a new petition filed by a U.S. employer for a software engineer currently residing in India who will require visa issuance and entry to begin employment in the United States. The petition falls within the scope of the fee because the individual is outside the United States and seeking initial H-1B admission. In comparison, an F-1 student residing in the United States whose U.S. employer files an H-1B change of status petition is not subject to the fee. The student is already in the United States and is not applying for visa issuance or entry from abroad, which makes the filing a domestic petition and, therefore, exempt under the new USCIS guidance.

Exception Requests: ‘Extraordinarily Rare’ and Limited in Scope

USCIS announced that the secretary of homeland security will grant exceptions to the $100,000 fee only in “extraordinarily rare circumstances.” Employers must demonstrate that no American worker is available to fill the position, that the H-1B worker’s employment is in the national interest, that the individual poses no threat to the security or welfare of the United States, and that payment of the fee would significantly undermine U.S. interests. All exception requests, including supporting evidence, must be submitted by email to H1BExceptions@hq.dhs.gov. USCIS emphasized that approvals will be granted sparingly and only when all four criteria are met.

Employer Impact and Strategic Considerations

For HR and legal teams, the update may provide meaningful relief and operational clarity. Domestic filings, including routine extensions, amendments, and transfers, may continue without change. However, employers may wish to evaluate overseas hiring plans and budget accordingly for new H-1B petitions requiring visa issuance abroad. Employers may wish to treat exception requests as a last-resort strategy for mission-critical hires, and these should be supported with detailed documentation aligned to USCIS’s four factors. Employers should also monitor forthcoming DHS guidance expected to address payment procedures and confirmation of receipt for exception submissions.

Policy Context

According to DHS and the White House, the purpose of the $100,000 fee is to ensure that H-1B hiring aligns with high-skill, high-wage positions, and to prioritize U.S. workers. The exemption for domestic filings reflects the government’s acknowledgment that employers operating within the United States already comply with prevailing wage, attestation, and labor condition requirements.

Key Takeaway

The USCIS clarification limits the immediate operational impact of the new rule. For some employers, H-1B processes conducted within the United States remain unaffected. The fee primarily targets new petitions for overseas hires, while exception requests will be available only in rare, well-documented cases. Employers may wish to assess overseas hiring needs, model potential costs, and maintain compliance under the evolving H-1B framework.

In this timely episode of Immigration Insights, hosts Kate Kalmykov and Courtney Noce, co-chairs of Greenberg Traurig’s Global Immigration & Compliance Group, address major developments in the U.S. immigration landscape. 

They discuss the administration’s surprise $100,000 fee on new H-1B petitions, initial confusion over its application, and the ongoing quest for clarity on exemptions and compliance. 

Kate and Courtney also delve into the proposed overhaul of the H-1B lottery to a points-based system, the rollout of Project Firewall, and the implications for wage compliance. 

Lastly, the episode highlights the newly introduced Gold Card and Platinum Card concepts, comparing them to EB-5 and examining what they mean for individual investors and U.S. business sponsors. 

Tune in for information on what these changes may mean for the future of U.S. immigration, global talent acquisition, and foreign investment.

Click here to listen to the full episode.

In Law360, Ian R. Macdonald, Greenberg Traurig shareholder in the Immigration & Compliance practice group, discusses a proposed DHS rule that would change the H-1B visa lottery from a random selection to a wage-weighted system, giving higher selection chances to beneficiaries offered higher wages based on DOL wage levels. The proposal aims to align visa allocation with skill level and program integrity.

Macdonald outlines potential impacts on employers, including increased labor and compliance costs, challenges for entry-level hiring, and the need to adjust workforce and compensation strategies.

Read “How DHS’ H-1B Proposal May Affect Hiring, Strategic Planning,” authored by Ian R. MacDonald, on the Law360 website. (subscription)

This Bloomberg Law article examines how proposed changes to the H-1B visa program are prompting companies to update their compliance practices. The new rules aim to increase transparency and oversight, requiring employers to adopt stricter documentation and reporting procedures. Kate Kalmykov, co-chair of Greenberg Traurig’s Immigration & Compliance practice, noted that these changes are encouraging companies to be more proactive and thorough in their compliance efforts. Experts also observe that organizations are reviewing and improving their internal processes to meet the evolving requirements for hiring foreign workers under the H-1B program.

Read “H-1B Visa Overhaul Spurs New Corporate Compliance Tactics.” (subscription)

The Department of Labor (DOL)’s new Project Firewall has become a much discussed—and misunderstood—development in U.S. business immigration. Announced in September 2025, this initiative signals an increased focus on federal enforcement of the H-1B visa program. While employers are right to take notice, some of the conversation around Project Firewall has been driven by speculation. Below, we seek to separate fact from fiction to help HR leaders, compliance officers, and global mobility teams prepare effectively.

Fact vs. Fiction #1: Project Firewall Is Just Another Routine Audit Program

Fiction: Project Firewall is business as usual—another compliance program with limited reach.

Fact: Project Firewall is one of the most aggressive H-1B enforcement initiative in more than a decade.

  • It enables “secretary-certified investigations,” giving the secretary of labor authority to personally initiate high-priority employer audits.
  • The initiative expands interagency data sharing between DOL, Department of Homeland Security, and Department of State to create a more unified enforcement network.
  • Early indications show targeted audits of employers with patterns of offsite placement, wage-level discrepancies, or unusually high H-1B ratios.

Takeaway: Employers might expect deeper, faster, and more coordinated investigations that go beyond traditional wage-and-hour audits.

Fact vs. Fiction #2: Only Large Tech Companies Are Affected

Fiction: Enforcement will focus solely on major tech firms or outsourcing companies.

Fact: Project Firewall is industry neutral. While data-driven targeting may prioritize large users of H-1Bs, smaller employers may be equally exposed if red flags appear—such as inconsistent job titles, frequent amendments, or third-party worksite placements.

Takeaway: Mid-sized and niche employers (including startups and consulting firms) should not assume immunity.

Fact vs. Fiction #3: Employers May ‘Fix’ Compliance Issues Later

Fiction: If issues arise, they may be corrected retroactively by paying fines.

Fact: Under Project Firewall, noncompliance may lead to debarment, not just civil penalties, impacting employers’ ability to sponsor new H-1B visas in the future.

  • Employers found to have committed serious or willful violations may be barred from filing H-1B petitions for a period of years.
  • Back-wage orders, public disclosure, and potential referrals to USCIS for status revocation are possible penalties.

Takeaway: Compliance must be proactive—rectifying issues after a DOL inquiry may no longer be sufficient.

Preparing for the Firewall Era: Practical Considerations for Employers

  1. Conduct an internal H-1B audit. Review LCAs, job titles, and wage levels for consistency and accuracy.
  2. Document everything. Keep records of worksite locations, job duties, and changes in employment conditions.
  3. Train HR and project managers. Ensure everyone involved understands LCA posting, amendment triggers, and documentation rules.
  4. Monitor third-party placements. Ensure vendors and clients understand and adhere to compliance obligations.

Conclusion

Project Firewall represents a new enforcement paradigm for employment-based immigration. The era of “checklist compliance” is over—now, employers must demonstrate active, documented adherence to the spirit and letter of H-1B regulations. The right preparation may help companies navigate this environment confidently, protect their foreign talent pipelines, and reduce exposure to costly investigations.

This article discusses proposed changes to the H-1B visa program that may make hiring foreign lawyers in the United States more expensive for employers, primarily due to increased wage requirements and additional compliance measures. At the same time, the changes clarify eligibility criteria, potentially making it easier for qualified foreign legal professionals to obtain H-1B visas.

Kate Kalmykov, co-chair of Greenberg Traurig’s Immigration & Compliance practice, commented in Law.com that these updates may help law firms better understand which roles qualify for the H-1B program, reducing uncertainty in hiring. The dual impact of higher costs and improved clarity is significant for organizations considering international legal talent.

Read “Proposed H-1B Changes Make Foreign Lawyers More Expensive, but Also More Accessible.” (subscription)

A shift is coming to U.S. immigration policy—and it’s arriving fast. As reported on our blog, beginning Sept. 21, 2025, a new Presidential Proclamation will impose a $100,000 fee on new H-1B petitions. While this fee does not apply to extensions, its impact on corporate hiring and immigration strategy may be profound.

Implications of the Timing

By the third quarter of 2025, some companies have already locked in their 2026 budgets—including headcount, payroll, and legal expenses. The introduction of a six-figure fee per new H-1B petition was not on anyone’s radar, and now organizations must pivot quickly.

Potential Consequences

  • Freezing or postponing hires that require new H-1Bs;
  • Shifting headcount toward domestic or alternative visa categories (L-1, E-2, O-1, TN);
  • Making cost-versus-value decisions for each foreign hire; and
  • Establishing corporate hubs in globally connected, mobility-friendly jurisdictions.

Six Immediate Considerations for Employers

To stay ahead of this policy change, employers may wish to consider following proactive measures:

  1. Tag Likely Impacted Roles Early – Identify which 2026 hires may require a new H-1B and distinguish them from extensions.
  2. Rework Your Immigration Budget – Collaborate with finance teams to allocate funds for the potential six-figure fee per accepted case.
  3. Focus on High-Value Positions – Prioritize filings for roles that offer the greatest strategic or financial return.
  4. Weigh Alternative Visa Pathways – Explore whether candidates qualify under L-1, E-2, O-1, or TN visas—all of which remain unaffected by the new fee. J-1 and H-3 training visas might also be considered.
  5. Rethink Remote and Global Models – Consider remote roles or overseas offices in economic hubs, while enhancing compliance with local tax, labor, and immigration laws.
  6. Get Documentation Ready – For new H-1B petitions, maintain a clean audit trail: proof of payment, petition attachments, and consular/CBP-ready documentation.

Strategic Considerations for Long-Term Resilience

Even if this fee is modified or challenged, it signals a broader trend: immigration risk and expense are now permanent business considerations. To build flexibility and control, employers might consider:

  • Embedding immigration into business planning – Make visa cost and risk part of annual talent, operations, and growth strategies.
  • Investing in analytics and scenario modeling – Use tools that simulate cost exposure across visa types, hiring volumes, and timing.
  • Develop partnerships and infrastructure for mobility – Strengthen alliances with outside counsel, global mobility providers, and employer-of-record (EOR) platforms.

Takeaways

This $100,000 H-1B fee is more than a policy change—it’s a strategic inflection point. For companies that have already finalized 2026 budgets, rapid alignment among HR, finance, legal, and operations will be essential. Immigration must be highly selective, tightly managed, and deeply integrated into corporate planning.

On Sept. 19, 2025, the U.S. Department of Labor (DOL) announced Project Firewall, a new enforcement initiative focused on compliance with employers’ obligations under H-1B visa program with respect to hiring and retention, wage and hour, and other employment practices.  Project Firewall’s stated goal is “to safeguard the rights, wages, and job opportunities of highly skilled American workers by ensuring employers prioritize qualified Americans when hiring workers and holding employers accountable if they abuse the H-1B visa process.” The initiative calls for enhanced agency investigations and a wide range of enforcement practices including payments of back wages, civil fines, and disbarment from the H-1B program.

Main Features

  • Investigations into employer’s H-1B practices will be certified personally by the secretary of labor and conducted by DOL’s Office of immigration Policy (OIP), Employment and Training Administration (ETA) and Wage and Hour Division (WHD), in coordination with Department of Justice (DOJ) Civil Rights Division, Equal Employment Opportunity Commission (EEOC), and U.S. Customs and Immigration Services (USCIS).
  • Enforcement actions resulting from these investigations may include:
    • recovery of back wages,
    • monetary fines, and
    • employer debarment from the H-1B program.

What May Be Inferred from Past Practices

DOL announcement provides little practical detail on the nature and scope of investigations; however, past DOL and USCIS practices may provide some insight into what employers might be facing as part of Project Firewall:

  • Unannounced site visits to verify H-1B employees’ job duties stated in the H-1B petitions versus performed, wages promised versus paid, other work conditions, or benching (non-payment during assignment gaps) of H-1B employees.
  • Audits of employers’ records to verify actual wages, benefits offered, and compliance with LCA regulations.
  • Challenges to employers’ job descriptions or occupational classifications.

Legal Risks for Employers

  • Financial – Potential for substantial back wages, fines, and penalties.
  • Program Debarment – Employers found in violation may be barred from using the H-1B program for a prescribed period.
  • Discrimination Investigations – DOJ involvement raises risks of claims of unequal treatment of U.S. workers, including, but not limited to, discriminatory hiring practices, lower wages paid due to availability of foreign labor, or unlawful displacement.
  • Whistleblower Complaints – Retaliation claims by employees reporting suspected abuse may add to liability.

Practical Considerations for Employers

  • Expect site visits, audits, and document requests and advise your H-1B employee population, HR, and security personnel accordingly. Develop an action plan. Ensure job titles and duties match filings.
  • Maintain clear, organized records; make sure all required paperwork is accurate and accessible. Stress-test your HR systems for rapid audit response. Introducing or maintaining “job banks” with standard, uniform, and clear job descriptions and minimum requirements is recommended.
  • Introduce or follow the existing practices to ensure proper tracking of any changes to H-1B workers’ work conditions, especially moves to a new entity, location, or dissimilar role – any of these may require an action with respect to their existing H-1B authorization. 
  • Periodically audit Public Access Files for your H-1B workers to enhance compliance, with prevailing and actual wage requirements and paperwork maintenance guidelines.
  • Train HR, managers, and recruiters on lawful hiring practices, specifically, not to favor H-1B candidates over qualified U.S. workers; document good-faith efforts to hire U.S. workers; avoid job postings or policies that appear to exclude U.S. workers.
  • Review contracts with third-party staffing firms to enhance compliance with H-1B regulations across the supply chain.
  • Brief executives and board members on potential penalties and reputational risks.
  • Align messaging: emphasize prioritization of American workers while maintaining compliance for foreign hires.

Key Takeaway

Project Firewall represents a fundamental increase in the level of H-1B enforcement. Employers should expect investigations and consider acting now to strengthen compliance programs and mitigate legal exposure.

The Department of Homeland Security (DHS) has published a proposed rule that may reshape the H-1B registration and selection process. These changes, if finalized, would have implications for employers seeking to hire skilled foreign workers under the H-1B category. Here’s what employers should keep in mind about the proposed modifications and how they may affect organizations.

Current System: The number of first-time H-1B petitions usually exceed the year’s quota and are selected based on a random drawing. The system is beneficiary-centered, allowing each prospective H-1B worker one entry.

Proposed Change: The H-1B selection would shift from a purely random lottery to a weighted lottery that favors higher-paid positions while still giving all wage levels a chance.

How the Weighting Works

The number of each beneficiary’s lottery entries is determined by their offered wage compared to the existing the DOL Occupational Employment and Wage Statistics (OEWS) wage levels (I–IV) for the beneficiary occupational classification in the area of employment.

Here’s how it works:

Wage Level Determination Process

  1. SOC Code Assignment: The employer identifies the appropriate Standard Occupational Classification (SOC) code that best matches the job duties and requirements
  2. Geographic Location: The wage is determined based on the specific geographic area where the work would be performed, as well as
  3. Skill/Experience Level: The position is classified into one of four wage levels based on the minimum job requirements:
    • Level I (17th percentile): Entry-level positions requiring basic understanding of duties and close supervision
    • Level II (34th percentile): Qualified positions requiring some experience and limited judgment
    • Level III (50th percentile): Experienced positions requiring sound understanding and considerable judgment
    • Level IV (67th percentile): Fully competent positions requiring advanced knowledge and wide latitude for judgment

Lottery Entries by Level

If the offered salary is equal or higher than:

  • Level IV: the beneficiary would receive four entries in the lottery
  • Level III: three entries in the lottery
  • Level II: two entries in the lottery
  • Level I: one entry in the lottery

Other Key Points

  • The proposed rule suggests that the resulting number of entries may not be just about the salary amount, but rather it is about how the job requirements and offered wage compare to the DOL’s statistical data for that specific occupation in that geographic area. A high salary for a Level I position does not automatically make it Level III or IV; the job duties and requirements must match the higher skill level definitions.
  • If a foreign national receives multiple H-1B cap sponsorship offers from different employers, the number of entries allowed to such beneficiary would be based on the lowest wage level offered of all petitions.

Impact: While not eliminating randomness entirely, employers offering higher wages may have better odds of selection. Specifically, Level IV positions would be four times more likely to be selected than Level I positions.

Implications for Employers

Increased Competition and Costs

The proposed wage-based selection system aims to drive up compensation packages as employers compete for priority selection. The proposed rule’s economic analysis provides specific cost estimates.

Increased Administrative Burden

  • Time requirements: USCIS estimates each H-1B registration would take approximately one hour to complete (increased from current estimates due to additional wage documentation requirements).
  • Wage determination research: Employers must spend additional time researching and documenting the appropriate OEWS wage level for each position.
  • SOC code verification: Enhanced requirements for accurate SOC code selection and justification.
  • Multi-location analysis: For positions with multiple worksites, employers must analyze and document wage levels across all locations.

Higher Labor Costs

  • Wage level competition: To improve selection odds, employers may wish to increase offered salaries from Level I to Level III or IV positions.
  • Market pressure: As more employers offer higher wages to gain lottery advantages, overall market compensation may increase.
  • Strategic salary adjustments: The rule estimates that many employers may voluntarily increase wages to move from one lottery entry (Level I) to three or four entries (Level III/IV).

Additional Compliance Costs

  • Documentation maintenance: Employers must maintain and store wage source documentation (such as DOL wage search printouts) for each registration.
  • Legal consultation: Many employers may require additional legal guidance to ensure proper wage level determinations and SOC code classifications.
  • Enhanced record-keeping: New requirements for maintaining detailed documentation supporting each registration’s wage determination and job requirements.
  • Verification processes: Additional time and resources may be needed to ensure all registration information is accurate and supportable.

Organizations may wish to budget for these increased administrative, legal, and labor costs when planning their H-1B strategies.

Strategic Planning Considerations

Employers may wish to be more strategic about their H-1B submissions:

  • Consider offering Level III or IV wages to potentially improve selection odds.
  • Review SOC classifications to support the offered wage while ensuring accuracy / reasonable nexus between the occupation and the offered role.
  • Cannot rely on multiple submissions for the same candidate.
  • Advanced degree candidates benefit doubly – they get both the weighted system advantage and access to the separate 20,000 visa pool.
  • Entry-level positions remain eligible but would face reduced selection odds with only one lottery entry.
  • Multiple worksite/role considerations – remember that the lowest applicable wage level would be used when multiple worksites are involved.
  • Future roles planning – USCIS may deny subsequent amendment petitions containing lower wage offers, as well as revoke the initial petition approvals, if they find that the conditions of initial offer were determined primarily to increase the chances of selection.

Fraud Prevention and Penalties

The proposed rule strengthens enforcement mechanisms:

  • Enhanced verification processes during registration and petition filing;
  • Potential suspension from H-1B program participation for fraudulent activity;
  • Increased scrutiny of registrations that appear inconsistent with employer size or business needs;
  • Cross-referencing with other government databases to verify employer legitimacy; and
  • Whistleblower protections for reporting fraudulent activity.

Timeline and Implementation

  • Public Comment Period: The proposed rule is open for public comment for 30 days from publication in the Federal Register.
  • Effective Date: If finalized, the rule would normally become effective 60 days after the final rule’s publication.
  • First Application: The new system may first apply to the FY 2027 H-1B cap season (registration period may end in March 2026).
  • Transition Considerations: USCIS will provide detailed guidance on system changes and any transition provisions.

Practical Considerations for Employers

Immediate Steps

  1. Review current H-1B strategy and assess impact of wage-based selection.
  2. Analyze wage levels for planned H-1B positions.
  3. Evaluate budget implications of offering higher wage levels.
  4. Consider submitting comments during the public comment period.

Long-Term Planning

  1. Develop alternative talent strategies that do not rely solely on H-1B workers.
  2. Explore other visa categories (TN, O-1, L-1, etc.) for key employees.
  3. Consider timing of H-1B submissions based on business priorities.
  4. Strengthen relationships with immigration counsel for strategic guidance.

Industry Impact

These changes may affect different industries and company sizes differently:

  • Technology companies that traditionally rely heavily on H-1B workers may face increased costs, but may be better positioned to offer higher wages.
  • Consulting firms that historically submitted multiple registrations for the same candidates may see reduced success rates.
  • Small businesses may face particular challenges competing against larger organizations offering higher wages, though the weighted system still gives them a chance.
  • Entry-level/college hiring programs may be significantly impacted as Level I positions would have only one lottery entry compared to four for Level IV positions.
  • Professional services firms may need to restructure compensation packages to remain competitive.

Small Business Considerations

The proposed rule acknowledges potential disproportionate impacts on small businesses, which may have less flexibility to increase wages to Level III or IV. However, the rule maintains that all wage levels remain eligible, preserving opportunities for smaller employers while incentivizing higher-skilled positions.

Conclusion

The proposed H-1B weighted selection system represents a significant shift from the current random lottery to a system that rewards higher wages and higher-skill positions, while still maintaining an element of chance for all wage levels. While aimed at improving program integrity and prioritizing more skilled positions, these changes might require employers to fundamentally rethink their H-1B strategies.

Bottom line: The new weighted system rewards higher wages and higher skill positions. Employers should evaluate their H-1B hiring strategy to maximize their chances under the new rules.

Key considerations include assessing wage structures, budgeting for potentially increased costs, ensuring accurate SOC code classifications, special attention to the standardization of job descriptions, as well as talent acquisition and recordkeeping practices and developing alternative talent acquisition strategies. Entry-level positions may remain eligible but might face significantly reduced odds compared to higher-wage positions.