9 January 2026
The H-1B filing season is officially underway, and for U.S. employers and prospective foreign professionals, early preparation is no longer optional, it is essential. Each year, the H-1B cap season becomes increasingly competitive and complex, and recent regulatory changes have raised the stakes even further.
At VKM Law Group, our Immigration Attorneys work closely with businesses across New Jersey and beyond to help them navigate the H-1B process strategically and compliantly. In this first installment of our seven-part series, we break down what employers and beneficiaries need to know as the H-1B cap season moves into full swing.
H-1B Registration: The Mandatory First Step
U.S. Citizenship and Immigration Services (USCIS) requires employers seeking to file cap-subject H-1B petitions, including those eligible for the advanced degree (master’s cap) exemption, to first complete an electronic registration and pay the $215 H-1B registration fee.
Each fiscal year, USCIS opens an initial registration period for a minimum of 14 calendar days, typically beginning in early March. If USCIS receives a sufficient number of registrations, it will conduct a selection process and notify employers of selected registrations no later than March 31, 2026.
Only employers with selected registrations may file an H-1B petition and only for the specific beneficiary named in that registration.
Strengthened Anti-Fraud Measures: Beneficiary-Centric Selection
On January 30, 2024, USCIS finalized a rule aimed at strengthening the integrity of the H-1B program and reducing fraud. Under this rule, USCIS adopted a beneficiary-centric selection process, eliminating any advantage gained by submitting multiple registrations for the same individual.
In practical terms, this means USCIS selects registrations based on unique beneficiaries, not the number of registrations submitted on their behalf. Employers should understand that submitting duplicate or coordinated registrations without a legitimate business need can lead to denials or revocations.
Major Change Ahead: The New Weighted H-1B Cap Selection System
A significant shift is coming. On December 23, 2025, the Department of Homeland Security (DHS) announced a new weighted H-1B selection system, effective February 27, 2026, and applicable to the FY 2027 H-1B cap season (March 2026 registrations).
While USCIS will continue to use a lottery, registrations will no longer be treated equally. Instead, selection odds will be weighted based on the Department of Labor (DOL) wage level assigned to the position:
- Wage Level I – 1 entry
- Wage Level II – 2 entries
- Wage Level III – 3 entries
- Wage Level IV – 4 entries
Higher-paid positions will therefore have significantly higher odds of selection. DHS has stated that this approach is designed to protect U.S. wages and discourage misuse of the H-1B program.
Why This Matters
Because wage level directly affects selection odds, employers must take the registration process seriously. USCIS will closely review whether the wage level, job duties, worksite location, and occupational classification listed during registration match the petition filed later.
Any attempt to manipulate wage levels or job descriptions may result in denial, revocation, or future scrutiny.
This change may make H-1B selection more difficult for:
- Entry-level hires
- Recent graduates
- Startups and small employers
Early planning and alternative visa strategies are now more important than ever.
Presidential Proclamation: New $100,000 Fee for Certain H-1B Cases
A recent Presidential Proclamation has introduced new restrictions on certain newly filed H-1B cases, including a $100,000 government fee in specific circumstances.
- Effective Date: September 21, 2025
- Duration: 12 months (with possible extension)
This Proclamation does not apply to all H-1B cases. Certain beneficiaries—such as individuals already present in the United States—may be exempt. Employers and foreign professionals should carefully evaluate whether this Proclamation applies before proceeding with registration, filing, or international travel.
This development adds yet another layer of complexity to an already demanding H-1B season.
H-1B Numbers: Why the Cap Is Tighter Than You Think
While the statutory H-1B cap is often cited as 65,000, the reality is more limited.
- 6,800 visas are reserved annually for nationals of Chile and Singapore under the H-1B1 program
- This leaves 58,200 regular H-1B visas available each year
- An additional 20,000 visas are reserved for individuals with U.S. master’s or higher degrees
In a future article, we will explore whether every U.S. master’s degree qualifies for the advanced degree exemption.
Given these limited numbers, employers should identify H-1B candidates early and allow sufficient time to:
- Prepare the petition
- File and obtain certification of the Labor Condition Application (LCA)
Strategic planning is critical for employment starting October 1, 2026, the first day of the new USCIS fiscal year.
Registration Timeline: How Long Will USCIS Accept Registrations?
USCIS will open the online registration system in early March 2026. If sufficient registrations are received, USCIS will complete selections after the registration period closes and announce results no later than March 31, 2026.
USCIS will release detailed guidance on how to use the registration system prior to opening.
One Registration Per Employee—No Exceptions
An employer may not submit more than one registration per beneficiary per fiscal year. This includes multiple registrations for different positions with the same employer.
Related entities (such as parent and subsidiary companies) may file separate registrations only if there is a legitimate business need. Failure to demonstrate that need may result in denial or revocation of all related petitions.
Both the Job and the Employee Must Qualify
An H-1B petition must establish:
- A qualifying specialty occupation, and
- A qualified beneficiary
Specialty Occupation Requirements
A specialty occupation requires:
- Highly specialized knowledge, and
- At least a bachelor’s degree in a specific specialty (or equivalent)
The position must also meet at least one of the following:
- A degree is normally required for entry into the role
- The degree requirement is common in the industry
- The employer normally requires a degree
- The job duties are highly specialized and complex
Beneficiary Qualifications
The beneficiary must possess:
- The required degree, or
- Full state licensure (if applicable), or
- Equivalent specialized education and progressively responsible experience
A general degree without specialization is often insufficient.
H-1B Filing Fees: What Employers Should Expect
The H-1B registration fee is $215, but that is only the beginning. Once selected, employers must file a full petition and pay USCIS filing fees, which vary based on employer size and type.
Fees may include:
- Base filing fee: $460 (small/nonprofit) or $780 (large employers)
- ACWIA fee: $750 or $1,500 (unless exempt)
- Fraud Prevention fee: $500
- Asylum Program fee: $300 or $600
- Supplemental fee: $4,000 (for certain large, H-1B-dependent employers)
- Premium Processing (optional): $2,805
In addition, certain cases may now be subject to the $100,000 fee under the Presidential Proclamation.
Wage Obligations and “Benching” Risks
Employers must pay the H-1B worker the higher of the actual wage or prevailing wage listed on the approved LCA. Wage obligations begin:
- Within 30 days of U.S. entry, or
- 60 days after change of status approval
Employers must also pay wages during nonproductive time caused by the employer (commonly referred to as “benching”). Failure to do so can result in civil penalties.
Compliance Matters: LCA Posting & Public Access Files
Employers must:
- Post notice of the LCA at each worksite for 10 days, and
- Maintain a Public Access File (PAF) available within one day of filing the LCA
The PAF must include wage documentation, prevailing wage sources, notices, and benefit summaries.
Employer-Employee Relationship & Control
USCIS requires proof of a valid employer-employee relationship. Employers must demonstrate the right to control when, where, and how the H-1B employee performs their job.
This is particularly critical for:
- Staffing companies
- Consulting firms
- Third-party placement arrangements
USCIS evaluates control based on multiple factors, with no single factor being determinative.