This month the Trump Administration has announced two massive changes to the H-1B visa program that will significantly affect employers and skilled foreign workers. Two changes in particular deserve close attention: the imposition of a $100,000 fee on certain H-1B petitions, and a proposed revamp of how the H-1B lottery is conducted.
$100,000 Visa Fee: What It Covers (and What It Doesn't)
On September 19, 2025, President Trump signed a proclamation requiring that new H-1B petitions submitted on or after 12:01 a.m. Eastern Daylight Time, September 21, 2025, include a supplemental payment of $100,000. The executive order was poorly drafted and left (and leaves) many questions unanswered about the petitions to which this fee will ultimately apply. In the days following the President's announcement, the government has clarified that the new fee does not apply to: (i) any H-1B petitions filed before September 21, 2025, even if final adjudication has not yet occurred; and (ii) current H-1B visa holders renewing status or reentering the U.S. under an already valid H-1B visa.
Unfortunately, several gray areas persist. While the wording of FAQs published by the White House and USCIS indicate that change-of-employer filings, extensions beyond the initial petition, or amendments, are not subject to the $100,000 charge, uncertainty remains. Moreover, it is unclear if the new fee applies to change-of-status petitions for foreign nationals already legally present in the United States or if it only applies to beneficiaries who are currently outside the United States.
The Executive Order does allow for discretionary exemptions, especially if the Secretary of Homeland Security finds the hiring is in the national interest. However, at this time, the mechanism for obtaining such exemptions, and whether they will be granted on a petition-by-petition basis or in broader swaths (such as by industry or type of job), are unknowns.
The new fee is set to sunset after one year, unless it is renewed by the President. Many commentators believes that the fee is illegal and violates federal law, so litigation over the fee is inevitable.
New H-1B Lottery System
The Department of Homeland Security has also proposed a substantial shift to the H-1B cap registration and selection process. Under the current process, each year USCIS has available 65,000 H-1B specialty occupation temporary work visas, plus an additional 20,000 for those holding US advanced degrees. Because employers seek more H-1B visas than are available, USCIS conducts a lottery and randomly selects registrants for these visas from an online registration portal.
Under the proposed rule, lottery registrations would have to include prevailing wage information (i.e. wage level) for the role in the area of employment. Under the Department of Labor's Occupational Employment and Wage Statistics wage data system, prevailing wages are divided into four wage levels. Under the weighted lottery system proposed, the lottery would be skewed toward submissions for individuals at the highest end of the wage continuum. A petition at the Level IV wage level would have four lottery entries, a Level III would have three entries, and so forth.
If adopted, this change could meaningfully shift the odds in favor of high-paying, specialized roles over entry-level or lower-wage positions. Clients considering submissions at the lower wage levels would face longer odds of success. That said, the proposal is not yet final, and DHS is accepting public comments.
Though this is one of the most dramatic adjustments to the H-1B system in decades, it is not irreversible. As regulatory definitions crystallize and litigation possibly unfolds, the landscape may shift further.
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