The H-1B Visa Classification in 2026: What’s Proposed, What’s Already in Effect, and What Employers Should Watch Next
By Becki Young, Partner
Should immigration judges be able to lose their jobs simply because a new presideThe H-1B program continues to evolve at a rapid pace. Over the past year, employers have navigated a series of significant policy changes and proposals, including a presidential proclamation imposing a $100,000 fee in certain situations, a new weighted H-1B lottery system, proposed prevailing wage increases, and most recently, a proposed $103,265 fee on cap-subject H-1B petitions.
Given the volume of developments, it is important to distinguish between what has already been implemented and what remains only a proposal.
What Has Already Been Implemented?
1. The Weighted H-1B Lottery
Beginning with the FY 2027 H-1B cap season (for which petitions were submitted in March 2026), USCIS implemented a weighted selection system (i.e., lottery) that gives preference to registrations associated with higher wage levels rather than relying solely on a random lottery.
The Administration has stated that this approach is intended to prioritize higher-skilled and higher-paid foreign nationals. Critics, however, argue that the system disadvantages recent graduates, researchers, postdoctoral scholars, and other early-career professionals, whose wage levels tend to be lower despite their significant long-term potential.
As a result, employers that traditionally rely on recent graduates may face new challenges in obtaining H-1B workers.
2. The Existing $100,000 H-1B Fee
Many employers are already familiar with the controversial $100,000 H-1B fee established through presidential action in September 2025.
Subsequent agency guidance clarified that this fee generally applies to certain new H-1B petitions filed for beneficiaries who are outside the United States or will need to depart the United States and then return to effectuate their H-1B status. Most change-of-status petitions filed for individuals already present in the United States, including many F-1 students transitioning to H-1B status, are exempt from the fee.
The legality of this fee continues to be litigated in federal courts. As of the date of publication, the fee has been stayed by a federal court and is not in effect.
What Is Newly Proposed and Not Yet Implemented?
1. New DHS Proposal: $103,265 H-1B Fee
On August 25, 2026, DHS published a Notice of Proposed Rulemaking that would impose an additional fee of $103,265 on every cap-subject H-1B petition, including petitions filed under the advanced degree exemption.
The proposed fee would be separate from all existing filing fees and separate from any other payment obligations that may apply (including the other $100,000 fee if the government prevails in the ongoing lawsuit).
According to DHS, the purpose of the proposal is to generate revenue to support administration of the broader lawful immigration system. Unlike traditional USCIS filing fees, which generally support USCIS operations, the proposal is novel in that it would fund activities conducted across multiple federal agencies involved in immigration administration, including USCIS, CBP, ICE, EOIR, the Department of State, and the Department of Labor.
Why Such a Large Fee?
DHS estimates that the proposal would generate approximately $8.8 billion annually.
The agency argues that the lawful immigration system relies heavily on fee revenue and that H-1B employers are generally better positioned than other immigration-benefit applicants to absorb higher costs. DHS claims that it considered spreading these costs across all immigration filings but ultimately concluded that cap-subject H-1B employers should bear the burden instead.
The proposed rule also suggests that a substantial fee could encourage employers to use the H-1B program only when they genuinely cannot locate qualified U.S. workers, thereby reinforcing the program’s labor-market objectives.
Who Would Be Subject to the Fee?
Notably, the proposal applies only to cap-subject H-1B petitions.
The proposal would generally not apply to employers filing cap-exempt H-1B petitions such as:
- Universities and institutions of higher education;
- Affiliated nonprofit educational entities;
- Nonprofit research organizations; or
- Government research organizations.
As drafted, the proposal would apply only to new cap-subject H-1B petitions selected through the annual quota process. Routine extensions, amendments, and many portability filings for workers who have already been counted against the H-1B cap would not be subject to the proposed fee.
2. DOL Proposal: Higher Prevailing Wages
The Department of Labor has proposed substantial changes to prevailing wage calculations for H-1B and PERM labor certification cases.
The proposal would raise the prevailing wage levels used across employment-based immigration programs. Supporters argue that higher wage requirements would better protect U.S. workers from wage undercutting. Critics contend that uniform wage increases do not adequately account for differences in experience levels, occupations, or career stages and may restrict access to talented early-career professionals.
Importantly, these prevailing wage revisions have not yet been finalized through a final rulemaking and, therefore, are not in effect.
What These Changes Signify
These proposed H-1B changes do not exist in isolation. They come amid a broader effort to reshape high-skilled immigration policy.
Taken together, these developments suggest a continued trend toward making H-1B sponsorship more expensive and more selective.
What Has Not Changed Yet?
At this stage, the proposed $103,265 fee is not law.
The proposal has entered the notice-and-comment process. Stakeholders, including employers, universities, trade associations, and immigration practitioners, will have an opportunity to submit comments to DHS before the agency decides whether to issue a final rule and what that rule will include.
Generally, the agency could:
- Finalize the proposal as written;
- Modify the proposal modestly or substantially; or
- Withdraw the proposal.
If finalized as proposed, the policy is likely to be subject to litigation. For now, employers should not assume the fee will take effect exactly as proposed.
Key Takeaways for Employers
The H-1B landscape remains highly fluid. Accordingly, employers should keep several important points in mind:
✅ The weighted H-1B lottery is already in effect.
✅ The existing $100,000 H-1B fee remains subject to ongoing litigation.
✅ The Department of Labor’s prevailing wage proposal has not been finalized.
✅ The newly announced $103,265 H-1B fee is only a proposal and is not currently in effect.
For employers that rely on high-skilled foreign talent, the coming months may prove critical. Organizations should closely monitor developments, evaluate how wage levels affect lottery competitiveness, and assess whether future hiring models remain viable if some or all of these proposed changes become reality.
The overarching theme of 2026 is clear: federal policymakers are increasingly focused on using fees, wage requirements, and selection mechanisms to reshape the H-1B program. Whether these initiatives ultimately survive public comment, litigation, and implementation remains to be seen, but employers should prepare now for a potentially more expensive and more restrictive H-1B environment.
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*Disclaimer: This information is presented for the purposes of general education and does not constitute legal advice.
