H-1B Nonimmigrant Visa Drama
Over the past several weeks, the White House has put the H-1B nonimmigrant visa program under the microscope and has launched a volley of attacks against the program. The current administration has sought to revise the program and to amend existing regulations, and the result has caused confusion and anxiety.
First, at the end of summer, a proposal was submitted to change the selection methodology for the H-1B lottery system. In the past, and as current regulations hold, there is a quota of 85,000 slots available for new H-1B applicants during a fiscal year. 20,000 of the slots are reserved for foreign nationals who have earned an advanced degree from an American university. The application and selection process takes place through the U.S.C.I.S. website. If applicants hold an advanced degree from an American university, then they are automatically entered into the “Master’s Cap” lottery. If they are not selected in the “Master’s Cap,” then their registration drops into the general lottery of 65,000. Essentially, the process gives an advanced degree holder two opportunities to be selected.
The proposal that has been submitted for review, currently in the 30-day comment period which begun on September 24, 2025, will move from a degree level focus to a salary level focus. A critique of the H-1B program is that it is a means to undercut American salaries by hiring foreign nationals. To combat this perceived loophole, the proposal would provide more opportunities for an applicant to be selected in the H-1B lottery based on their proposed salary.
As a precursor to filing a H-1B petition, an employer must first file an application known as the Labor Condition Application (LCA) with the U.S. Department of Labor (DOL). The purpose of the LCA is to demonstrate to the DOL that the petitioning employer is not undercutting the local job market with the hiring of an H-1B eligible foreign national. The LCA documents both the job category and geographic location of the job. The salary levels are determined by the DOL, and they are updated every July 1st. Each salary category is broken down into four levels based on the DOL’s methodology. As long as the sponsoring employer is offering the “prevailing wage” for the position, then the DOL will certify the LCA and the H-1B can be filed.
The pending change will allow an employer who is offering a Level 4 wage, highest wage amount, to the foreign national employee to have four entries in the H-1B lottery as opposed to the previous maximum of two. Conversely, if an employer can only offer a Level 1 wage to the foreign national employee, then that applicant will have only one entry to the lottery. The result is to promote higher salaries within the program.
A second prong of the proposal will be that the DOL will need to release new wage tables once the regulations have passed through the requisite review processes. The expectation being that the new data would mean an increase in salaries. Also, there will be an emphasis on ensuring that employers pay the higher of either the “actual wage” or the “prevailing wage” for the proffered position.
Expect more about the new H-1B lottery regulations at the end of October. It would also make sense that we will see litigation to combat changes to the H-1B program that did not go through the Congress.
Second, the recent H-1B Proclamation sent a shockwave through both employers and foreign nationals who were either currently on a H-1B or were contemplating entering the H-1B lottery. The H-1B Proclamation issued on Friday afternoon, September 19, 2025, stated that employers would be required to pay a $100,000.00 filing fee for H-1B petitions filed after September 21, 2025, and possibly those foreign nationals who were outside the United States who would be applying for a visa. (Please refer to our client alert for more details).
There was immediate pushback from attorneys, employers, and industry leaders. By the end of the weekend, the U.S. CIS had published guidance on its website regarding how the new H-1B Proclamation would impact communities. Essentially, current H-1B holders and those who are filing for extensions would not be impacted and would not face the new $100,000 fee even if they were to leave the country to obtain a visa. However, the fact remains that new petitions filed since September 21, 2025, where the beneficiary is outside the United States would be subject to the fee.
Lawsuits were filed in October to challenge the new fee. The fee would have a disparate impact on non-subject institutions, universities, and hospitals versus those employers in Silicon Valley and other hi-tech industries. The H-1B Proclamation can be considered another attempt to curtail the use of the program by employers who are perceived to be undercutting U.S. salaries. The unintended consequence is that employers who are not cap subject or nascent businesses cannot afford this immense fee. The employers who need foreign national talent for research, medicine, or defense contractors are pushed out of the H-1B program.
The Administration sought to temper the onerous fee by offering a carve out for H-1B holders who would be working in the national interest of the United States. And then, on October 20, 2025, another guidance memo was issued whereby:
The Proclamation also does not apply to a petition filed at or after 12:01 a.m. eastern daylight time on September 21, 2025, that is requesting an amendment, change of status, or extension of stay for an alien inside the United States where the alien is granted such amendment, change, or extension. Further, an alien beneficiary of such petition will not be considered to be subject to the payment if he or she subsequently departs the United States and applies for a visa based on the approved petition and/or seeks to reenter the United States on a current H-1B visa.
This last round of guidance provides a mechanism for employers to participate in the H-1B lottery and enter an applicant for a recent foreign national graduate who is presently in the United States. The new guidance effectively means that the H-1B Proclamation’s impact will only impact foreign nationals applying for a new H-1B who are outside the United States. Based on this narrowing trend, we should expect to see further guidance being issued and other categories of employers who will be exempted from the fee.
Employers should be wary of any new immigration proclamations. Do not follow a knee-jerk reaction. Wait for some of the dust to settle before charting a path forward. Cooler heads seem to prevail in this arena. In addition, lawsuits challenging new immigration regulations temper their impact. The prudent course of action is to check in with our immigration team regarding specific questions and learn how we can assist you in navigating a path forward.
The Immigration Practice Group at Pierson Ferdinand (immigration@pierferd.com) includes Junior Partner Allison Bustin (allison.bustin@pierferd.com), Partner Giovanni Antonucci Di Cesare (giovanni.antonucci@pierferd.com), and Founding Partner Sanford Posner (sanford.posner@pierferd.com), all of whom are available to counsel and to address any immigration matters.
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