The H-1B cap season in 2026: wage inflation and a $100,000 barrier to entry

Greg Siskind

Siskind Susser, Memphis, Tennessee

gsiskind@visalaw.com

The most recent H-1B cap registration cycle has taken place against a backdrop of unusually rapid and consequential policy changes that reflect the anti-immigration leanings of the Trump administration. While the H-1B programme has long been subject to regulatory tightening and shifting adjudication standards, this year marks something more fundamental. Two developments in particular – the implementation of a significantly more aggressive prevailing wage framework and the imposition of a $100,000 fee through presidential proclamation – have altered not just how the programme operates, but who can realistically participate in it.

Taken together, these measures move the H-1B programme away from a high-volume, lottery-driven system and toward something closer to a de facto merit- and capital-based selection model.

The new wage rule: raising the floor

The most significant change to the H-1B cap in years is US Citizenship and Immigration Services’ move away from a purely random lottery to a weighted, wage-based selection system.

For years, every registration had an equal chance of selection. That neutrality is gone. Under the new rule, registrations are weighted based on the wage offered. A Level 4 wage receives four entries into the selection pool; Level 3 receives three; Level 2 receives two; and Level 1 receives one.

The system is still labelled a ‘lottery’, but it is no longer random in any meaningful sense. Compensation now plays a central role in determining who is selected.

The Department of Homeland Security’s (DHS) projections show how significant the shift is. Selection rates for Level 1 positions drop to roughly 15 per cent, while Level 4 positions exceed 60 per cent. For practical purposes, wage level is now a major determinant of outcome.

This changes how practitioners need to approach H-1B strategy. The key question is no longer just whether a role qualifies as a specialty occupation, but whether it is offered at a wage level that makes selection likely.

USCIS has included anti-gaming provisions. They may deny or revoke petitions where wage levels were improperly selected or later reduced. And, if multiple employers register the same beneficiary at different wage levels, USCIS will assign the lowest wage level for selection purposes.

This rule applies to the current cap cycle and all 85,000 visas.

In effect, the rule moves the H-1B programme toward a wage-based system without changing the statute. Higher-paid positions are far more likely to be selected, while entry-level roles face sharply reduced odds.

Legal challenges are expected since there are solid arguments that Congress did not intend for this, but for now, the takeaway is straightforward: employers sponsoring lower-wage positions must reassess whether H-1B remains a viable option.

The $100,000 fee: a structural barrier

If the wage rule raises the floor, the $100,000 fee imposed via presidential proclamation raises the stakes.

President Trump issued a proclamation last September that bars the entry of H-1B visa holders unless their employer pays a $100,000 fee. This is not an incremental increase layered onto existing filing fees. It is an order-of-magnitude shift that fundamentally changes the economics of the programme.

Historically, H-1B fees have been grounded in statute and tied to specific policy goals, such as workforce training or fraud prevention. While those fees have increased over time, they have remained within a range that, while burdensome, did not fundamentally alter participation decisions for most employers.

The new fee is different. For many employers, particularly startups, smaller companies, non-profit (including schools, churches and health care organisations) and even some mid-sized businesses, a $100,000 cost per hire is prohibitive. Even for larger organisations, the fee forces a level of internal scrutiny and justification that significantly reduces the number of cases that will move forward. A national interest exemption is available, but after six months, not a single one has been granted.

The immediate effect has been a chilling of demand. As of March, only 70 employers in the US had paid the fee. Employers are far more selective, reserving H-1B sponsorship for candidates who are perceived as exceptionally valuable or difficult to replace in the domestic labour market. In practical terms, this means fewer registrations, fewer filings and a much narrower pool of beneficiaries.

The legal issues surrounding the fee are substantial. The administration has relied on its authority under the Immigration and Nationality Act (INA) section 212(f), a provision traditionally used to restrict entry of certain classes of noncitizens. Whether that authority extends to imposing a monetary condition of this magnitude is an open question. Opponents argue that the fee functions as an unauthorised tax and exceeds the scope of executive power. Three major suits are pending in courts around the US.

A de facto merit-based system

Individually, each of these changes would be significant. Together, they are transformative.

Higher wage requirements limit eligibility to better-compensated positions. The $100,000 fee limits participation to employers willing and able to make a substantial financial investment. The combined effect is to concentrate H-1B visas among the highest-paid workers sponsored by the most well-resourced employers.

This outcome resembles, in many respects, a merit-based system – one that prioritises compensation and economic value. But it is important to note that Congress has not enacted such a system. The statutory framework still relies on a randomised lottery. What has changed is the set of constraints surrounding that lottery, which now effectively determine who can enter it in the first place.

For practitioners, this shift is critical. The strategic question is no longer simply whether a candidate qualifies for H-1B classification, it is whether the position and the employer can withstand the economic and regulatory burdens now associated with the programme.

Implications for employers and talent

Employers are already adjusting. Many are conducting more rigorous pre-registration screening, focusing on roles that justify both the higher wage levels and the additional fee. Others are exploring alternative visa categories or shifting work offshore.

For foreign national professionals, the implications are equally significant. Opportunities at entry level are contracting, and the pathway into the US labour market is increasingly limited to those who can command higher salaries or fit within alternative visa frameworks.

There are broader economic considerations as well. The US has long relied on the H-1B programme as a mechanism for attracting global talent. By raising both financial and wage barriers, the current approach risks redirecting that talent to other jurisdictions with more accessible systems.

Looking ahead

The durability of these changes is far from certain. Both the wage rule and the $100,000 fee are likely to face sustained legal challenges, and courts may ultimately limit or invalidate one or both measures. At the same time, the administration has demonstrated a willingness to use executive authority aggressively in this area, suggesting that further changes are possible.

What is clear is that the 2026 cap season represents a turning point. The H-1B programme is no longer defined primarily by its lottery. It is increasingly defined by the economic and regulatory thresholds that determine who can afford to participate.

For now, employers, practitioners and foreign nationals must navigate a system that is more restrictive, more expensive and more uncertain than at any point in recent memory.