It’s H-1B Lottery Time, But With Big Changes for Employers This Year

This year, employers must register all their prospective H-1B employees into the lottery between March 4 through 19. The US Citizenship and Immigration Services (USCIS) caps the number of H-1B’s they issue each year to 65,000 for those with a bachelor’s degree and an additional 20,000 to those with at least a master’s degree from a US institution. Historically, more H-1B cap-subject applications are submitted every year than spots allowed, and thus, the USCIS conducts a lottery every year to choose who will be eligible to file H-1B applications.

Who Should Be Registered in the Lottery

The lottery is only for someone’s initial H-1B, not for existing H-1B extensions or transfers. So, typically, the H-1B lottery is for:

• F-1 (foreign students), including those working with Optional Practical Training (OPT) or Curricular Practical Training (CPT) work authorization.

• Spouses working in H-4, L-2, or E visa status who want their own independent work visa through their employer instead of relying on their spouse’s status and expiration dates.

• TN professionals who are thinking about starting the green card process (because you generally cannot file for a green card while in TN status).

It may be advisable for employees in other statuses to change to H-1B.

New Wage-Weighted Lottery Selection System

The USCIS will no longer conduct a random, computer-generated lottery. Instead, the USCIS is implementing a new wage-weighted lottery selection system where those who are paid higher levels of wages have a greater chance of being selected in the lottery. The US Department of Labor (DOL) has a database of jobs and corresponding wages, called the OEWS. Each occupation is assigned a Standard Occupational Classification (SOC) code and four levels of wages (Generally, level one is the entry level version of the job, and level four is the most senior version of the job.). The wages change by geographic location so that when you plug in the state and county of the worksite into the DOL database, you will get the wages for that job in that location. The location must be the worksite where the employee will physically work.

This year, employers must specify for each H-1B lottery applicant the SOC job code and address of the area of intended employment. Then, the employer must state the wage level (1-4) that it intends to pay the H-1B applicant if selected in the lottery and approved for H-1B status. Those who are promised to be paid at higher wage levels are entered into the lottery more times. The chart below shows how the entries and chances of being selected increase by wage level.

If selected in the lottery, in the full H-1B application submitted to the USCIS, the employer must re-affirm the wage level and geographic area used in the registration or face the chance of denial. If visited by US government officials to ensure H-1B compliance, employers will need to prove their compliance with the statements stated in the H-1B paperwork submitted.

The New $100,000 Fee Considerations

In September 2025, President Trump announced a new $100,000 fee for some H-1B applicants. In October 2025, guidance was released describing when the new fee would apply. In general, the new fee should not apply if the H-1B applicant is physically in the United States at the time of filing for the H-1B and stays in the United States until the application is fully approved. Thus, if employers are submitting H-1B lottery registration for those who will remain outside the United States through the full filing and adjudication process, or if the lottery applicant travels outside the United States prematurely, then the new $100,000 fee may be triggered. Further, if the USCIS approves the petition but determines that a visa is needed to enter the United States in H-1B status, the fee may be triggered. Employers should confirm in writing with their employees that, if they are selected in the lottery, they are in the United States at the time of filing the full H-1B application and will stay in the United States until the application is fully approved. It is also advisable that the prospective H-1B employee remain in the United States until the October 1 start date of H-1B status. Employers should also consider having a policy about what they will do if the new fee is triggered. Will they pay it? Will they withdraw the H-1B application? The policy should be shared with employees, so they are fully aware of the risk of being stranded abroad without a valid H-1B status to use for reentry into the United States.

Who Is Exempt From the Lottery

Certain categories of H-1B’s are exempt from this cap (meaning they can apply for an H-1B anytime) but note that the $100,000 fee may still apply in certain circumstances. The categories include those:

• Transferring existing H-1B’s from one employer to another.

• Extending existing H-1B’s.

• Working for US colleges or universities.

• Working for a nonprofit institution affiliated with a US college or university.

• Working for nonprofit research organizations.

Lottery Registration Timeline and Process

The lottery registration period will be March 4 through 12:00 PM on the 19. If this registration window is missed, employers must wait a year until the following March for the next H-1B lottery for a chance at an H-1B for their foreign national employee. So, it is important to do a full assessment of all upcoming staffing needs now.

Employers must register each foreign national they wish to sponsor for an H-1B through the USCIS’ online H-1B registration portal on My USCIS. The prospective H-1B worker must have a valid passport in order to register for the lottery, and that passport information is entered into the lottery registration. If they are chosen in the lottery, the worker must use the same passport listed in the lottery registration in the complete petition filed by the employer and when applying for their H-1B visa abroad. While the USCIS has discretion to accept a change in passport number or expiration date due to a renewal, the best practice is for prospective H-1B applicants to immediately renew any passport that is expiring soon so that they can enter the newly extended passport information into the H-1B lottery registration.

The USCIS is continuing its “beneficiary-centric” lottery process that it launched two years ago. Under this process, although employers submit the H-1B lottery registrations for their prospective H-1B workers, the USCIS will select beneficiaries, not employers, in the lottery. So, for example, if an individual has three different employers submit H-1B lottery registrations for them, the USCIS will consolidate those registrations under one beneficiary or worker. Further, the beneficiary will be considered using the lowest wage level selected by all employers who registered that beneficiary. If a beneficiary is selected, all employers who registered that worker will be notified of the selection and they can each file H-1B applications for that worker. 

Those who have a master’s or higher degree from a US institution will first be entered into the “regular” H-1B lottery, which allows for 65,000 H-1B’s per year. If they are not selected in the “regular” lottery, they will then go into a second lottery pool of only those with a master’s or higher from a US institution, and there will be another lottery conducted from this pool, allowing for an additional 20,000 selections.

Foreign nationals must have their qualifying degree by the time they file the full application. A foreign national who is close to graduating with their bachelor’s degree can be registered by the employer for the lottery, and then, if chosen in the lottery, take the full 90-day period to file the full H-1B application to allow time for the degree to be awarded.

Typically, the USCIS notifies employers through their My USCIS online accounts by March 31 if their registrations were selected in the lottery. Those chosen in the lottery will be given at least 90 days to file their full H-1B applications (typically April 1-June 30). The earliest H-1B employment start date you can request in the full application is October 1, 2026.

Those not chosen in March will remain in the electronic lottery registration system, and, if additional H-1B spots become available, the USCIS will choose additional H-1B applications from that reserve. In recent years, additional spots became available and they conducted a second lottery in late summer. In 2021, there was a third lottery in November.

Work and Travel Impact on F-1’s

Regarding those in F-1 OPT status, as long as they were selected in the lottery and their full H-1B application was filed prior to their OPT expiration date, their OPT work authorization will be automatically extended through April 1, 2027 (unless their H-1B is rejected, denied, revoked, or withdrawn prior to that date). To ensure that this OPT extension is activated in a timely manner, those in F-1 OPT status may want to file their full H-1B’s as soon as they are notified that they were chosen in the lottery (rather than using much of their 90-day filing window).

Generally, those with expired OPT’s will not have international travel authorization. In addition, anyone filing for a change of status from one visa category to an H-1B cannot travel internationally while the H-1B application is pending. Otherwise, although the H-1B status may still be approved, the employee will have to leave the United States, obtain an H-1B visa at a US Consulate abroad, and then reenter the United States to activate the H-1B, instead of just automatically changing into H-1B status on October 1. This scenario will likely trigger the $100,000 additional filing fee.

The Immigration team at ArentFox Schiff can help you assess who to enter into the lottery and guide you through the H-1B lottery and application process. Please contact Berin S. Romagnolo or Nancy A. Noonan with any questions.