Introduction
The H-1B visa program remains one of the most sought-after pathways for skilled foreign workers seeking employment in the United States. With the U.S. Citizenship and Immigration Services (USCIS) announcing that the FY2026 H-1B Cap Registration period will run from March 7 to March 24, 2025, employers must prepare to navigate the updated registration process effectively. This article outlines key changes, best practices, and alternative options for foreign national employees not selected in the lottery.
Key Changes in H-1B Cap Registration for FY2026
Increased Filing Fees
One of the most significant changes for FY2026 is the drastic increase in the H-1B registration fee, which has risen from $10 to $215 per beneficiary. This 2000% increase aligns with USCIS’s updated fee schedule to cover administrative costs.
Beneficiary-Centric Selection System
Continuing from FY2025, the H-1B selection process remains
beneficiary-centric, meaning individual beneficiaries, rather than employer registrations, are selected in the lottery. If multiple employers submit registrations for the same beneficiary and that beneficiary is selected, each sponsoring employer will have the opportunity to file an H-1B petition. This approach reduces the risk of gaming the system through multiple employer registrations.
Importance of Careful Candidate Selection
Given the increased cost, employers should be strategic about which candidates they enter into the H-1B lottery. Identifying high-priority candidates and ensuring their qualifications align with the program’s requirements is essential.
Advantages of the H-1B Visa and AC21 Extensions
The H-1B visa offers several benefits for both employers and employees:
- Dual Intent Visa: Unlike other visa categories, H-1B holders can pursue permanent residency while maintaining their nonimmigrant status.
- Initial Stay & Extensions: The H-1B is granted for an initial period of up to six years. However, under the American Competitiveness in the Twenty-First Century Act (AC21), H-1B holders may extend their status beyond six years if:
- They have an approved I-140 petition but their priority date is not yet current (eligible for three-year extensions).
- Their PERM labor certification or I-140 petition has been pending for at least 365 days (eligible for one-year extensions).
- Work Authorization Flexibility: Many H-1B holders’ spouses in H-4 status can apply for work authorization, expanding economic opportunities for families.
Selecting Employees for H-1B Cap Registration
Employers should consider the following visa holders when deciding whom to sponsor:
- F-1 Visa Holders: Students in Optional Practical Training (OPT) or STEM fields (eligible for a two-year extension).
- L-1 Visa Holders: Professionals working for multinational companies may seek an H-1B to extend their stay beyond L-1 limits.
- TN Visa Holders: While TN visas (available to Canadian and Mexican nationals) are viable, transitioning to an H-1B can facilitate long-term residency goals.
- H-4/L-2/TD Dependents: Some dependents may benefit from independent work authorization through an H-1B transition.
- DACA and TPS Beneficiaries: While these individuals may not always qualify for a direct H-1B change of status, employers should assess eligibility carefully.
Reviewing Job and Candidate Profiles in Light of H-1B Modernization
The
H-1B Modernization Regulation, effective January 17, 2025, clarifies the definition of a
specialty occupation. The new rule requires a "logical connection" between the degree field and the job’s duties. Employers must:
- Ensure that job descriptions clearly define the duties and required qualifications.
- Review Labor Condition Applications (LCA) to ensure alignment with USCIS requirements.
- Assess whether multiple degree fields logically connect to the position, as USCIS officers will scrutinize such cases.
Alternative Options for Candidates Not Selected in the Lottery
Given that the H-1B lottery selection rate has remained between
25-30%, employers must have contingency plans for candidates who are not selected. Possible alternatives include:
1.
- TN Visa (for Canadian and Mexican citizens)
- E-1/E-2 Visa (for treaty traders and investors)
- E-3 Visa (for Australian nationals)
- H-1B1 Visa (for Chilean and Singaporean professionals)
- O-1 Visa (for individuals with extraordinary ability in their field)
2.
Multinational employers may
place candidates in overseas roles for at least 12 months and later transfer them back under an L-1 visa, which allows executives, managers, or employees with specialized knowledge to work in the U.S.
3.
F-1 visa holders can
extend their stay by enrolling in an advanced degree program, which may also qualify them for continued
Curricular Practical Training (CPT) or
OPT work authorization.
4.
Candidates with spouses in the U.S. on
H-1B, L-1, or E-2 visas may apply for dependent status (H-4, L-2, or E-2 dependent) and, in some cases, obtain
work authorization.
Pros & Cons Summary
Pros of H-1B Cap Registration and Extensions
✔ Provides a
long-term employment pathway in the U.S.✔ Allows
dual intent, making it easier to apply for permanent residency✔ Offers
extensions beyond six years under AC21 for those on the Green Card path✔ Grants
spousal work authorization under certain conditions
Cons of H-1B Cap Registration
✖
Lottery-based selection process creates uncertainty✖
Increased filing fees add financial burden to employers✖
Strict specialty occupation requirements require careful job and degree alignment✖
Long processing times and
visa backlogs impact employment continuity
Conclusion
The FY2026 H-1B Cap Registration brings both opportunities and challenges for employers and foreign nationals. Careful planning, strategic candidate selection, and alternative visa options can help employers navigate the process efficiently. By leveraging best practices and contingency plans, companies can maximize their chances of securing top talent while ensuring compliance with the latest USCIS regulations.