Immigration

In March 2025, USCIS will open the registration period for the annual H-1B cap lottery. During the designated registration period, USCIS will allow employers to submit registrations toward the annual H-1B quota. The annual H-1B quota is for a total of 85,000 H-1B visas – 65,000 standard H-1B visas (i.e. for positions that require at least a Bachelor’s degree or equivalent in a specific field and the applicant has at least a Bachelor’s degree in that or a related field) and an additional 20,000 H-1B visas for individuals who have been awarded a U.S. master’s degree or higher. At the end of the registration period, if more H-1B registrations are filed than there are H-1B visas available, which is expected, USCIS will conduct a random lottery to select H-1B registrations.  If a registration is selected in the annual lottery, the employer may then file a full H-1B petition with USCIS.

While we are waiting for USCIS to release the official dates of the H-1B registration period, below are key considerations to prepare for the H-1B cap process, including changes to the program for fiscal year 2026.

Identifying Potential H-1B Candidates

Employers should review their employee populations and staffing needs to identify candidates for entry into the H-1B lottery. This typically includes the following:

• Employees working pursuant to F-1 OPT or STEM OPT
• Employees in L-1 status who are subject to strict time limits on their visas
• Employees working in a dependent visa status, such as employees working as E-2 or L-2 spouses and employees working pursuant to H-4 EADs
• Employees in TN, E, or H-1B1 status who are being considered for long-term US employment

Specialty Occupation Requirement

The H-1B visa is for employees in “specialty occupations.” The term specialty occupation refers to roles that normally require a minimum of a bachelor’s degree or higher (or equivalent) directly related to the role. In regulations implemented on January 17, 2025, USCIS clarified that a role may qualify as a specialty occupation even if the employer accepts a range of qualifying degree fields, provided that each of those fields is directly related to the duties of the role. Directly related means there is a logical connection between the required degree, or its equivalent, and the duties of the role. This means that USCIS does not necessarily rely on the specific field on a degree but may look at an applicant’s coursework, for example, to determine if the applicant is eligible for an H-1B.

Business Owners Are Eligible for H-1B Visas

To promote access to H-1Bs for entrepreneurs, start-up entities, and other beneficiary-owned businesses, in the same January 17 regulations, USCIS clarified that a company may file an H-1B petition for an employee who has a controlling interest in the company so long as the H-1B employee/owner will perform H-1B-caliber specialty occupation duties a majority of the time. However, the initial and first extension of these petitions will be limited to 18 months, rather than the normal 3 year H-1B validity period.

Increase in Registration Fee

For fiscal year 2026, USCIS has increased the H-1B registration fee from $10 to $215.

Expansion of “Cap Gap” Period

Starting this fiscal year, the cap gap period for applicants in F-1 OPT or STEM OPT status who are selected in the H-1B cap lottery will be extended to April 1 of the fiscal year for which the H-1B petition is filed. This change, implemented as part of the January 17 regulations, provides greater protection against gaps in work authorization for applicants in F-1 status while they are awaiting a decision on their H-1B change of status petition. By way of background, when an H-1B cap petition is approved, the validity period starts on October 1 or later. This has historically caused a problem for F-1 students with OPT or STEM OPT that expires before the starting validity of the H-1B. To solve this problem, USCIS has provided “cap gap” work authorization, which automatically extends the work authorization and status in the U.S. of individuals working pursuant to F-1 OPT or STEM OPT at the time an H-1B change of status petition is filed. Previously, the cap gap period ran until October 1 (the start date on the H-1B). However, if an H-1B cap petition was still pending by October 1, in the applicant would have had to stop working by that date, resulting in a gap in work authorization. The new regulation extending "cap gap” to April 1 of the fiscal year of the filing period aims to resolve this issue.

Employers Not Subject to the H-1B Cap

Some employers are not subject to the H-1B cap, meaning that they may petition for an H-1B for a prospective employee at any time during the year. Specifically, H-1B employers who are an institution of higher education or its affiliated or related nonprofit entities, a nonprofit research organization, or a government research organization, are not subject to the H-1B cap. In the January 17 regulations, the requirements for nonprofit research organizations and governmental research organizations have been updated. Under the old standard, a nonprofit research organization had to be “primarily engaged” in research and a governmental research organization had to have a “primary mission” in the performance or promotion of research. Under the new standard, a nonprofit research organization or a governmental research organization can qualify as exempt from the H-1B cap if research is “a fundamental activity” of the organization. The purpose of this change is to expand the number of petitioners who are now eligible for the H-1B cap exemption and, by extension, to increase the number of H-1B petitions that may be exempt from the H-1B cap.

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Associate Linda Sabatello was a contributing author to this client alert.