Recent developments in the H-1B visa program signal significant changes that are reshaping the immigration landscape for skilled foreign workers in the United States.
The revisions include a new definitive regulation for selecting candidates beginning in 2026, updates related to multiple lawsuits challenging the $100,000 fee imposed by the Trump Administration on new applications, and social media scrutiny affecting new applicants.
First, beginning in February 2026, the H-1B lottery will be replaced by a wage-weighted selection system that prioritizes higher wages, marking the most significant shift in the H-1B process since its inception.
The goal of this change is to attract skilled foreign workers while protecting the wages and job opportunities of American workers. The final rule is expected to take effect on Feb. 27, 2026.
DHS said the previous lottery process was often misused by employers seeking cheaper foreign labor.
“The final rule does not eliminate the H-1B lottery, but it does significantly reshape it by replacing a flat random system with a wage-weighted selection process layered on top of the beneficiary-centric framework,” says U.S. immigration attorney Jihan Merlin from Alma Law. “Selection odds will now vary based on the wage level of the offered role, which materially favors more senior, higher-paid positions while still preserving eligibility across all wage levels.
How does the new H-1B wage-weighted selection work?
The new selection process significantly changes the odds, reducing them from approximately 35% offered by the random lottery system to all applicants. These opportunities vary by salary level.
– Level I (lowest pay): 15.29% chance
– Level II: 30.58% chance
– Level III: 45.87% chance
– Level IV (highest pay): 61.16% chance
“There will be clear winners and losers with this change,” Merlin adds. “Roles classified at higher wage levels are expected to see significantly improved outcomes. DHS projected selection odds of over 45% for Wage Level III roles and over 60% for Wage Level IV roles, compared to about 30% under the prior system. However, more junior, lower paid roles will see reduced much lower odds.”
Additionally, at registration, new applicants must provide details on their salary levels, job codes, and work locations. They must also verify that their salary information is accurate as of the registration date.
Merlin also notes that the H-1B cap now depends on factors such as compensation, SOC code, and job location, which affect selection outcomes and could disadvantage startups and companies that offer lower salaries through alternative compensation such as equity.
Immigration attorney Charles Kuck of Kuck Baxter anticipates legal challenges to the final rule due to its formulation.
“The USCIS will most assuredly be sued with this latest rulemaking, which is completely inconsistent with the statute, as well as the intent of the H-1B visa program,” he says.
USCIS also indicated that more changes to the program are expected, joining other updates such as the $100,000 per-visa fee as a condition of eligibility, which is currently being challenged in court.
Two lawsuits against H-1B fees remain after a judge dismisses another claim
On Dec. 23, a Washington U.S. District Judge dismissed one of the challenges filed against the $100K fee implemented in September by the Trump Administration for new H-1B applications to curb program abuse and protect American jobs.
The dismissed claim was submitted by the U.S. Chamber of Commerce, which argued that the fee violated federal immigration law and would result in job cuts and reduced services.
The other two lawsuits against the charges continue.
In October, a coalition of California employers filed the first lawsuit challenging a new fee requirement for H-1B visa applicants, arguing that it imposes a financial burden and disrupts stability for both employers and foreign workers, with significant implications for healthcare, education, and the economy. They seek immediate blocking of the fee requirement, among other remedies.
“We filed for class certification, sought a preliminary injunction, and added additional plaintiffs this week, as well as submitted a number of declarations from plaintiffs as well as experts,” U.S. attorney Greg Siskind of Visa Law, who is part of the plaintiff’s legal team, says. “The defendants have not replied yet to the new motions.”
The U.S. Chamber of Commerce also filed its now-dismissed lawsuit in October.
In December, 20 attorneys general filed a third lawsuit, arguing that the new policy is illegal and imposes unnecessary burdens on employers, particularly in the public sector. They claimed that DHS is contradicting Congress’s intent for the H-1B program and asserted that the policy requires formal rulemaking and exceeds the executive branch’s authority under the Administrative Procedure Act (APA).
“The third suit by the state attorneys general is another opportunity for at least people in the covered states to get relief if we’re not successful,” says Siskind.
Also in December, the U.S. Department of State (DOS) announced that its online presence and social media review requirement would include all H-1B principal applicants and their H-4 dependent family members.
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