Re: H-1B Fiscal Lottery is Coming!
It’s that time of year: The Fiscal Year H-1B Cap Lottery Season is here. We are available now to help you assess potential candidates and you may begin sending us your case initiations. As you evaluate your current and prospective employee population in need of a Fiscal Year H-1B, we want to highlight some important updates that will affect strategy and timing this year.
The H-1B Lottery Is Not Dead- Important Clarification on the $100,000 H-1B Fee
Despite some confusion surrounding the $100,000 fee announced last year, the H-1B lottery remains a very viable option for many employees. H-1Bs may still be filed as change-of-status (COS) cases without triggering the $100,000 fee, provided the beneficiary is already in the U.S. and eligible to change status. In other words, the $100,000 fee applies only to out-of-country (OOC) H-1B filings; it does not apply to all H-1Bs and it does not categorically prevent participation in the lottery. What has changed is that employers can no longer rely on out-of-country (OOC) filings to avoid travel restrictions, delay an October 1 start date, or defer wage obligations.
As a result, early review of maintenance of status and travel plans is critical to avoid filings that unexpectedly require consular processing and trigger the fee. As a practical matter, beneficiaries pursuing COS filings should generally plan not to travel internationally from approximately April 1 through October 1, 2026, as travel during this period converts a COS filing into an OOC case.
Wage-Weighted H-1B Lottery
DHS has finalized a rule replacing the fully random H-1B lottery with a wage-weighted selection system. See our post on this here.
When USCIS conducts a selection, registrations will be weighted based on the Occupational Employment and Wage Statistics (“OEWS”) level tied to the role:
- Wage Level IV → 4 entries
- Wage Level III → 3 entries
- Wage Level II → 2 entries
- Wage Level I → 1 entry
All wage levels remain eligible.
Strong candidates for the lottery include individuals who:
- Are already in the U.S. with status valid through October 1, 2026, including F-1 students with status that expires between April and October, and are eligible for cap gap
- Are eligible for change-of-status filing (e.g., no prior status violations, not subject to the J-1 2- year home residence requirement, or are not currently relying on TPS or Asylee-based EADs); and
- Can plan to avoid international travel during the cap season, if selected in the lottery.
What’s Changing in Practice
- More information is required at registration, including work location(s), wage level and the Standard Occupational Classification or “SOC” code. This code is the federal job classification that best describes the role’s core duties and is used by the government to determine prevailing wage. For this reason, upon initiation, we will be requesting job titles, job descriptions and requirements, salaries, and worksite information. Because H-1Bs submitted under the lottery will not take effect until October 1, 2026, an employer will want to consider what will be in effect by the fall when it is defining the roles and locations. Reasonable, good-faith projections remain appropriate.
- If selected, the H-1B petition and LCA must match the registration exactly
This shifts analysis earlier in the process—but it is analysis that has always been required at the petition stage.
As a result, our H-1B (FY Registration) fee has been updated to reflect proposed changes in the upcoming annual H-1B lottery that makes the process much more complicated. The revised fee reflects strategizing on eligibility, determining occupational classification, and assessing wage leveling in addition to completing the registration. If selected in the lottery, a separate fee will then be charged to prepare and file the H-1B petition.
We will be holding a Webinar on Friday, February 6th at 10AM PST to provide more details about this year’s H-1B lottery process. Please stay tuned for more details and check our Web site for upcoming registration information.
Please also feel free to reach out to your Weaver Schlenger attorney with any questions and to begin planning.
Warm regards,
Weaver Schlenger LLP
