Major Changes to the H-1B Visa Process Could Be on the Horizon
Nov 04, 2025Any business with a global recruitment strategy would be affected
In late September, the Trump Administration proposed some major changes to the selection process for H-1B visas. Rather than the current randomized lottery, the Trump Administration wants to base allocation on the skill level required and wages offered. In concert with that announcement, the Administration has also proposed that a $100,000 payment accompany all new H-1B visa applications going forward.
The H-1B visa, used heavily by the tech industry, has become a hot-button issue for some elected officials, who argue that recipients displace American workers.
The Current Program
The current H-1B visa program is a non-immigrant visa that allows employers in the United States to temporarily hire foreign workers in specialty occupations that require “theoretical or technical expertise.” Information technology, engineering, finance, and health care employers are heavy users of the program, and are required, as employer sponsors, to demonstrate that the foreign worker possesses the appropriate qualifications for the position.
The program is subject to an annual cap, and the lottery system kicks in when applications exceed the annual limit, which is 85,000. Higher education and research-based organizations are exempt from that cap. Visas are granted for three years, and can be extended to a maximum of six years, with a possible pathway to permanent residency.
Applicants must pay a $25 registration fee for the initial H-1B cap lottery, and private employers submit a $780 fee to sponsor a petition. Additional fees associated with the process rarely exceed a few thousand dollars.
The program is enormously popular for entrepreneurs, startups, and any business with a global HR recruitment strategy for filling specific, hard-to-fill positions.
Proposed Changes
On September 19, President Trump signed a proclamation titled “Restriction on Entry of Certain Nonimmigrant Workers”. This proclamation and the follow-up H-1B FAQ from the Department of State released on September 21 contained some important information for employers:
- As of September 21, 2025, employers must submit a $100,000 payment for new H-1B visa applications.
- This payment does not change any payments or fees otherwise required for any H-1B renewals. It’s a one-time fee.
- The fee applies only to future applicants, including the FY2027 cap lottery that occurs in March 2026.
- The fee does not apply to anyone who participated in the FY2026 lottery that occurred in March 2025.
- There could be exceptions for specific individuals, companies, and industries if the Department of Homeland Security (DHS) determines that it is “in the national interest of the United States and does not pose a threat to the security or welfare of the United States.”
Additional guidance concerning the President’s proclamation was published by United States Citizenship and Immigration Services (USCIS) on October 20, 2025. Other than fine-tuning the specifics about who is subject to the new fee — in effect, any petition filed after 12;01 a.m. eastern daylight time on September 21, 2025 — this guidance provides petitioners with previously absent “how to pay” instructions.
Other possible changes on the horizon
If you’re wondering how this new fee could affect the H-1B lottery process, you’re not alone. However, the Trump Administration has been clear about their disdain for the lottery process and their plan to replace it with a wage-based merit system.
On September 24, 2025, DHS proposed a new rule entitled “Weighted Selection Process for Registrants and Petitioners Seeking to File Cap-Subject H-1B Petitions.” In the proposed new framework, H-1B applicants would be prioritized by salary (i.e., the highest paying job offers would move to the front of the line).
The new rule would also require employers to provide the government with a more extensive position analysis upon registration. In addition to all the other identifying information currently required upon registration (i.e., name of applicant and passport information), the employer would also need to provide:
- Wage level of the offered position
- The SOC code of the offered position
- The area of intended employment
Under the current rule, the employer does not need to finalize the job offer and other specifics— like salary, job description, and worksite — until H-1B cap lottery selection. Under the proposed rule, this information, and the corresponding OES (Occupational Employment and Wage Statistics) prevailing wage analysis, would have to be determined before the H-1B registration can be completed.
What now?
The comment period for DHS’s proposed new rule ended on October 24, 2025. Employers and HR professionals who use the H-1B visa program should begin considering how the proposed rule changes and new fees would impact their talent search strategies. Whatever happens next, these proposed changes clearly reflect the attitude and direction of the Trump Administration on these matters, and are worthy of our attention.
We must wait to see how the courts respond to the new $100,000 fee. Litigation was expected, and on October 16, the U. S. Chamber of Commerce (USCC) announced the first major legal challenge to the proposed H-1B fee. Filed in Washington, D.C., the lawsuit says that the $100,000 fee “would inflict significant harm on American businesses, which would be forced to either dramatically increase their labor costs or hire fewer highly skilled employees for whom domestic replacements are not readily available.”
The Chamber’s lawsuit also said that the fees would overwhelmingly impact smaller businesses with less capital and that other countries would poach employees who could not find work in the United States due to the high cost of the H-1B visa.
“The Proclamation is not only misguided policy; it is plainly unlawful,” the lawsuit said. It “exceeds the President’s lawful authority.” The lawsuit references the Immigration and Nationality Act, which governs the H-1B program, and states that all fees must be based on the costs incurred by the government in processing visas.
Long-term impacts
Most employers will not feel the full impact of the new fee on new H-1B applications until next year. However, employers exempt from the annual H-1B cap – higher-ed institutions and certain government or nonprofit research entities — can file new H-1Bs at any time and could feel the financial impact sooner.
While many details remain uncertain, these proposed changes to the H-1B visa process could dramatically change the flow of college-educated immigrants into the United States and reduce the supply of critical skills in industries that rely significantly on foreign talent.
If you have any questions or concerns about how these emerging policies will impact your global workforce development and recruitment strategies, merger and acquisition plans, or any other workforce or business development matter, don’t hesitate to contact Orr & Reno for assistance.
