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Status: December 9, 2025 updated with Proclamation & DHS Guidelines
The immigration landscape has shifted significantly since September. Between White House proclamations and new DHS proposals, the rules for the FY2027 H-1B Cap season have changed. This guide translates the latest numbers and legal developments into plain actions for HR leaders planning the H-1B registration period in March 2026.
Glossary
- CY2026 = FY2027: USCIS runs on a fiscal year starting Oct 1. People selected in the March 2026 lottery start H-1B status on Oct 1, 2026 (FY2027).
- OEWS: Occupational Employment and Wage Statistics (used to determine wage levels).
What Happened in the Last Cycle (2025)
The selection rate last year (FY2026) settled at roughly 35%, a significant improvement over the prior year’s ~24%. The system has stabilized due to tighter fraud controls on duplicate filings. However, for the upcoming cycle in March 2026, two major developments will reshape the landscape: the $100k Fee Proclamation and the Weighted Selection Proposal.
The $100K H-1B Fee: Who is Exempt and Who Pays?
There has been significant noise regarding the Presidential Proclamation imposing a $100,000 fee on H-1B visas. For HR leaders planning their lottery roster, it is critical to separate the signal from the noise.
Who is Exempt? (The "Green Zone")
Based on recent clarifications, the $100k fee does not apply to the vast majority of your domestic workforce strategy. You are in the clear for:
- Change of Status: F-1 students (OPT/STEM OPT) already in the U.S. moving to H-1B.
- Transfers: Hiring H-1B employees from competitors.
- Extensions: Renewing current employees.
Who is Impacted? (The "Red Zone")
The fee is currently set to apply only to net-new H-1B cases filed via Consular Processing—meaning candidates who are selected in the lottery while physically residing outside the United States.
H-1B Lottery Odds 2026: The Impact of Wage Levels
DHS has proposed shifting the lottery from a random selection to a weighted system based on Prevailing Wage Levels. This change is designed to favor higher-salaried roles. If implemented for March 2026, the number of “entries” each registration gets will depend on its wage level:
- Level I: 1 entry
- Level II: 2 entries
- Level III: 3 entries
- Level IV: 4 entries
Using Math to Find Optimism
If we apply this weighting system to last year's volume (~344k applicants), here is how the odds shift for your candidates:
How Geography Shapes Your Strategy
Because the weighted lottery relies on prevailing wages, not just absolute salary, location matters more than ever.
- Smaller Markets: A $95,000 salary for a software engineer in a lower-cost city might qualify as Level II or III (2-3 lottery entries).
- High-Cost Metros: That same $95,000 in San Francisco may only be Level I (1 entry).
Strategy: If your policy allows remote work, consider the "geo-arbitrage" of placing candidates in locations where their compensation commands a higher wage level to maximize lottery odds.
Reducing Risk: Strategy for EAD Holders: H-4, DACA, and TPS
The most overlooked reason to use the H-1B lottery this year is to protect your employees currently on Employment Authorization Documents (EADs).
With the recent End of Automatic EAD Extensions (effective Oct 30, 2025), employees relying on EADs are at higher risk of work gaps. Moving them to H-1B status is the only way to "lock in" their long-term employment eligibility.
Category A: The "Standard" Move (F-1 OPT/STEM)
- Risk: Low.
- Strategy: Register them all. If selected, they simply "Change Status" to H-1B on October 1st. This is seamless and exempt from the $100k fee.
Category B: The "Complex" Move (DACA, TPS, H-4)
- Risk: High (Requires Legal Review).
- The Issue: Employees on DACA or TPS often cannot "Change Status" inside the U.S.; they may need to travel abroad to activate their H-1B ("Consular Processing").
- Travel Risk: Leaving the U.S. can trigger re-entry bans if the employee has prior unlawful presence.
- Fee Risk: Because they require Consular Processing, these cases may trigger the $100k Proclamation Fee.
Communication: Scripting for Recruiters
Candidates are reading the headlines and are likely anxious. Equip your recruiting team with these specific talking points:
- For F-1 OPT / STEM OPT Candidates:
"Your H-1B lottery process is a 'Change of Status,' so the new $100k fee does not apply to you. We are proceeding as normal."
- For Current H-1B Transfers:
"H-1B transfers and renewals are exempt from the new fee regulations. Your offer is secure."
- For Candidates Abroad:
"The new $100k fee may apply to your case. We are monitoring the regulations closely, but we are committed to supporting your candidacy where possible."
Summary Checklist for HR Leaders: 2026 H-1B Lottery
- Audit your Roster: Identify all F-1, DACA, TPS, and H-4 EAD holders.
- Wage Check: Run a wage-level analysis for every candidate to estimate their lottery odds (Aim for Level 2+).
- Register: Submit registrations for all eligible employees to secure the option value.
- Budget: Prepare leadership for potential fee impacts on "Consular" cases, but reassure them that the domestic workforce is largely shielded.
Frequently Asked Questions (FAQ)
Does the $100k H-1B fee apply to transfers?
No. The $100,000 fee generally applies to new H-1B visas issued via consular processing. H-1B change of status, transfers and extensions inside the U.S. are currently exempt.
What are the H-1B lottery odds for 2026?
Odds vary by wage level. Level 1 wages have approx. 17% chance, while Level 3 wages have approx. 51% chance under the proposed weighted system.
Can DACA holders apply for the H-1B lottery?
Yes, employers can register DACA holders for the lottery. However, if selected, they may need to use consular processing, which carries specific risks and fees. Consult an attorney before they travel.
Key Takeaway
The numbers show that H-1B odds are improving for strategic employers. While the $100k fee grabs headlines, it affects a minority of cases. By leveraging wage levels and using the lottery to stabilize your EAD population, HR leaders can turn this year's complexity into a competitive advantage.
Disclaimer: The content in this guide is for informational purposes only and does not constitute legal advice. Immigration laws, regulations, and processing times are subject to change without notice—particularly regarding pending litigation and Presidential Proclamations. While we strive to provide the most up-to-date information, WayLit cannot guarantee the accuracy of this data at the time of reading. Please consult with a qualified immigration attorney to discuss your specific workforce needs and to verify how these updates apply to your organization.
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