As published in the Immigration Daily on January 23, 2026
It is mid-January and the annual cap H-1B season and registration selection process of USCIS is upon us. If cap-subject organizations intend to participate, they should begin to identify candidates in this month if not yet started.
This H-1B season features two new pieces of law which organizations should consider – the Presidential Proclamation’s $100,000 fee if the company is sponsoring new H-1B petitions from individuals who are overseas or for those in the US whose changes of status are denied https://www.whitehouse.gov/presidential-actions/2025/09/restriction-on-entry-of-certain-nonimmigrant-workers/, and the weighted wage rule which will favor organizations willing to pay a higher wage under the Department of Labor standard for wage levels. https://www.govinfo.gov/content/pkg/FR-2025-12-29/html/2025-23853.htm.
It should be noted that although both new laws may still be blocked, it should be assumed that they will remain in place for this year’s selection, which will make the selection process more exacting for organizations and their legal representatives.
A reminder – that in the weighted wage rule, just as in a lottery, the highest wage levels get the most ping-pong balls and more chances to win, or in this case to be selected –four balls for level IV, three for level III, two for level II, and one for level I.
Another challenge will be the amount of information required in the process which will necessitate careful thought and preparation in the registration and, if selected, in the later H-1B petition. Information must be disclosed in the registration on the wage to be paid, SOC code (meaning that the job must be defined) and area of employment. The registration process in the past has not required such data. Careful assessment of all registration information to be disclosed should be made to ensure that relevant factors are thoroughly considered and that future applications and petitions are not jeopardized by DHS analysis of submitted information given its rapidly expanding use of AI to crosscheck current with past information.
Most organizations and candidates wonder about the odds of being picked in the weighted wage system. Besides the accepted fact that level III and level IV wages will give more opportunities to be picked, what is the severity of disadvantage if the position’s wage level is level I or level II? Do interested organizations throw up their hands and decide that the odds are not worth the time and expense of submitting H-1B registrations? USCIS itself came up with a methodology in the weighted wage rule using a modeling acceptance figure of 29% for past annual selections based on historical data and somehow extrapolating estimated odds for this year of level I – 15.29%, level II – 30.58%, level III – 45.87%, and level IV – 61.16%. (page 60948 of the Federal Register final rule):
Are these figures approximately correct? It is difficult to say, but it appears that the figures are inaccurate if the $100,000 H-1B fee survives court challenges. The modeling never took into account the effect of the staggering fee in discouraging registrations from overseas in neither the proposed rulemaking nor the final rule. In the final rule’s analysis, DHS explained (page 60941 of the Federal Register final rule):
In this analysis, DHS uses historical data of both registrations and received petitions to estimate the future registration and petition population. DHS uses five-year averages to estimate the number of registrations and H-1B cap-subject petitions received annually. DHS does not adjust these estimates to account for the H-1B Proclamation because, as discussed earlier in this preamble, (1) that Proclamation applies to only a subset of H-1B petitions, (2) exceptions to the $100,000 payment may be granted by the Secretary …, and (3) the H-1B Proclamation will expire, absent extension, 12 months from its effective date. This rule, in contrast, will continue indefinitely.
The following is food for further thought. A USCIS report, “Characteristics of H1B Specialty Occupation Workers” www.uscis.gov/sites/default/files/document/reports/ola_signed_h1b_characteristics_congressional_report_FY24.pdf? released in April 2025 gave information that of the 141,205 H-1B petitions approved for initial employment, 53.8% went to individuals for change of status, amendment, and/or extension of stay processed inside the US, and 46.2% for those consular processing outside the country. Although there are obvious problems correlating this type of data to number of anticipated received registrations and there may be a rush of individuals attempting to come into the US on other types of visas in the hope that they may be selected for H-1B registration and be able to change status successfully, the sheer thought that approximately half of initial H-1B petitions come from overseas shows the potential for a much lower number of registrations for FY 2027 than in FY 2026 (343,981 eligible registrations) https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations/h-1b-electronic-registration-process? The total count in FY 2026 is probably a better benchmark of likely registration numbers than five-year averages as it was the first year using both biocentric and modernization rules which heavily reduced the counts from four of the last five years. If so, wage levels that must be declared for applicants under the H-1B wage weighting regulation would be impacted so that more beneficiaries with wage level I and II offers could be selected than under the USCIS estimate.
Although the author makes no claim to be a statistician, it seems logical that a recalculation based upon a much lesser number of H-1B registrations along with the known fact that USCIS accepts 120,000+ H-1B registrations annually instead of the 85,000 annual allotted number to make up for anticipated shortfalls due to such factors as candidate withdrawals, job offers falling through, employers discovering ineligibility of the candidates, denials, rejections, withdrawals, and revocations, would improve the odds of selection for lower level wage earners.
Organizations may wish to concentrate efforts on H-1B candidates already here in the States with clear immigration histories more confident that USCIS projected acceptance statistics of level I and level II applicants are likely invalid if the $100,000 H-1B fee is upheld for this year’s registration. On the present status of the fee litigation, there appear to be three main cases. The District Court in Chamber of Commerce of the USA v. U.S. Department of Homeland Security, No. 1:25-cv-03675 (D.D.C. Dec. 23, 2025), upheld the fee and an appeal is presently on a fast-track in the DC Court of Appeals. The other two cases are in different stages in district courts in California and Massachusetts (State of California v. Noem, 1-25cv-13829 (D.Mass.) and Global Nurse Force v. Trump, 4:25-cv-08454 (N.D.Cal.)). As of the date of this writing, there do not appear to be any lawsuits filed against the weighted wage rule.
