27 November 2025
The upcoming Fiscal Year 2026 H-1B lottery is fast approaching, and employers must move beyond headlines to understand the material changes affecting their workforce strategy. The core of the H-1B program securing skilled foreign talent is still viable, but recent USCIS and Department of State updates require immediate, targeted action.
We provide clarity on the new $100,000 petition fee and other critical policy changes. Your proactive preparation now is non-negotiable.
Actionable Insights & Policy Breakdown
1. The New $100,000 Fee: Who is Truly Affected?
Despite widespread alarm, the new $100,000 H-1B filing fee does not apply to most current U.S. workers. USCIS guidance has clarified the following exemptions:
- Current H-1B Holders: The fee does not apply to petitions filed for amendments, extensions, or changes of status for current visa holders.
- Prior Filings: Petitions filed before September 21, 2025, or those already in process are exempt.
The Reality: The new surcharge is primarily directed at consular petitions cases where the prospective employee is physically outside the United States and will enter upon H-1B approval. Employers must budget for this cost when sponsoring new hires abroad for the cap-subject lottery.
2. Change of Status: Still a Safe Path
Foreign nationals maintaining lawful nonimmigrant status within the U.S. (e.g., on F-1, TN, or J-1 visas) are not subject to the $100,000 fee for a Change of Status (COS) filing. This means students on OPT/STEM OPT remain a strategically vital source of talent, as their cap-subject petitions can proceed under the normal fee structure.
3. Consular Processing: A Major Constraint
As of October 10, 2025, the U.S. Department of State has significantly restricted the practice of “third-country national” visa appointments.
- The New Rule: Applicants for nonimmigrant visas are now generally required to book their interview in their country of citizenship or legal residence.
- Employer Impact: This change will inevitably lead to longer wait times at high-volume consulates and reduce scheduling flexibility. Employers and foreign workers must now start preparing travel and document logistics far earlier in the process.
4. EAD Automatic Extensions Have Ended – Immediate Risk
Effective October 30, 2025, the Department of Homeland Security has discontinued the 540-day automatic extension for many Employment Authorization Document (EAD) renewal applicants.3
- Affected Categories: This critical change impacts asylum applicants, Adjustment of Status (AOS) applicants, and dependent spouses (H-4, L-2, E) with pending EAD renewals.
- The Result: These individuals must stop working the moment their EAD card expires if the renewal has not yet been approved by USCIS. The primary exception is Temporary Protected Status (TPS) holders.
VKM Law Group: Your Strategy for the FY2026 Lottery
The regulatory environment is defined by complexity and accelerated deadlines. To protect your business operations and talented workforce, VKM Law Group recommends the following immediate steps:
- Early Identification: Identify all cap-subject candidates, especially F-1 students on OPT, and confirm their eligibility.
- Compliance Review: Immediately review all EAD holders (especially H-4, L-2, and AOS) and ensure renewal petitions are filed with extreme urgency to prevent a lapse in work authorization.
- Consular Planning: Factor in the new consular wait times for any employee requiring visa stamping abroad. Proactive communication is essential.
- Cost Mitigation: Clearly delineate which filings will incur the new $100,000 fee (new consular cases) versus those that are exempt (in-country extensions/COS).
- Seek Counsel: Do not rely on speculation or outdated information. Your case demands the attention of a skilled attorney who can provide customized legal strategy.
FAQ – Key Takeaways
| Question | VKM Law Group’s Direct Answer |
| Who must pay the $100,000 fee? | Only employers filing new H-1B petitions for individuals located outside the U.S. (consular processing) on or after September 21, 2025. |
| Are extensions for current H-1B employees exempt? | Yes. Amendments, extensions, and changes of status for current employees inside the U.S. are exempt. |
| Can F-1 students on OPT apply without the fee? | Yes. Change-of-status filings from inside the U.S. are not subject to the new charge. |
| Can applicants still book visa appointments in third countries? | Generally, no. The new rule mandates scheduling in the applicant’s home country or country of legal residence. Prepare for delays. |
| What is the urgent advice for EAD holders? | File renewals as early as possible. The automatic 540-day extension is gone; a work stoppage is now a serious risk. |
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