By Cyrus D. Mehta
The H-1B visa program has been eviscerated by way of the promulgation of a remaining rule that may prioritize the allocation of H-1B visas within the lottery to those that are increased expert and better paid and thru government motion. Relatedly, President Trump issued an government order that may impose a $100,000 price on H-1B petitions filed on behalf of beneficiaries who’re outdoors the US. The $100,000 price won’t apply to H-1B petitions filed on behalf of beneficiaries who’re already within the US and also will be requesting a change of standing to H-1B from one other nonimmigrant standing equivalent to F-1 or J-1. This government order was just lately upheld by a federal district court docket. These mixed actions have radically modified the H-1B visa program by way of the stroke of a pen and with none laws from Congress.
DHS Finalizes H-1B ‘Weighted Choice’ Rule
On December 23, 2025, the Division of Homeland Safety (DHS) introduced a remaining rule implementing a weighted choice course of that typically favors the allocation of H-1B visas to those that are, within the administration’s view, “higher-skilled and higher-paid.” The rule governs the method by which U.S. Citizenship and Immigration Companies (USCIS) selects H-1B registrations for distinctive beneficiaries for submitting of H-1B cap-subject petitions (or H-1B petitions for any 12 months through which the registration requirement is suspended). DHS acquired 17,000 feedback and made no adjustments from the proposed rule. Courtroom challenges are anticipated to observe.
Below the brand new course of, as a substitute of a random lottery, registrations for distinctive beneficiaries or petitions will likely be assigned to the related Occupational Employment and Wage Statistics wage degree and entered into the choice pool as follows: (1) registrations for distinctive beneficiaries or petitions assigned wage degree IV will likely be entered into the choice pool 4 instances; (2) these assigned wage degree III will likely be entered into the choice pool thrice; (3) these assigned wage degree II can be entered into the choice pool two instances; and (4) these assigned wage degree I will likely be entered into the choice pool one time. Every distinctive beneficiary will solely be counted as soon as towards the numerical allocation projections no matter what number of registrations had been submitted for that beneficiary or what number of instances the beneficiary is entered within the choice pool, DHS stated. The brand new remaining rule is anticipated to make it considerably much less seemingly that corporations will rent worldwide college students once they graduate from U.S. universities.
The ultimate rule, printed on December 29, 2025, is efficient February 27, 2026, and will likely be in place for the Fiscal 12 months 2027 H-1B cap registration season.
District Courtroom Guidelines In opposition to Plaintiffs in $100,000 H-1B Price Lawsuit, Plaintiffs Enchantment
In Chamber of Commerce v. Division of Homeland Safety, a district court docket has dominated in favor of the Division of Homeland Safety (DHS), discovering that imposition of a $100,000 price for brand spanking new H-1B functions and associated actions had been authorized beneath a Presidential Proclamation pursuant to INA 212(f).
“Defendants have the stronger place,” U.S. District Choose Beryl Howell stated. “The lawfulness of the Proclamation and its implementation rests on an easy studying of congressional statutes giving the President broad authority to manage entry into america for immigrants and nonimmigrants alike.”
Choose Howell famous, “To be clear, this choice in favor of defendants is to not dismiss or low cost the previous and ongoing contributions of H-1B employees to the American economic system that plaintiffs spotlight. Vital as these contributions could also be, the results of the H-1B program on the American economic system or nationwide safety, whether or not optimistic or unfavorable, are merely not at challenge on this case. The Supreme Courtroom has lengthy maintained that issues of financial and overseas coverage are typically entrusted to the political branches of presidency and ‘hardly ever correct topics for judicial intervention.’ ”
The plaintiff teams, the US Chamber of Commerce and the Affiliation of American Universities, have sought expedited overview within the DC Circuit Courtroom of Appeals. The teams stated of their emergency consent movement to expedite enchantment that neither part of the Immigration and Nationality Act that Trump cited in his proclamation that imposed the hefty price for the H-1B nonimmigrant visa program “accommodates the clear assertion essential to delegate to the president Congress’s energy to impose taxes on U.S. employers.”
“What’s extra, the proclamation takes a wrecking ball to Congress’s fastidiously crafted design of this system — in overriding this system on this method, it exceeds the bounds of the president’s lawful authority,” the teams stated.
Moreover, a number of states joined an amicus temporary supporting plaintiffs in International Nurse Power v. Trump, filed within the Northern District of California. There’s hope that the DC Circuit Courtroom of Appeals and one other district court docket will rule otherwise from Choose Howell’s choice. The temporary in International Nurse Power v. Trump asks the choose to briefly block a brand new Trump administration coverage to cost new H-1B immigrant visa candidates a $100,000 price. Amongst different issues, the states and different plaintiffs argue that the price would exclude from hiring certified H-1B employees nonprofits and colleges which are unable to afford it.
The amicus temporary consists of the attorneys normal of Arizona, California, Colorado, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Rhode Island, Vermont, Washington, and Wisconsin.
Impression of the Mixture of the Wage Prioritization Rule and the $100,000 Price
For additional insights, watch my interview on CNBC/TV18 with esteemed colleague Steven Brown relating to the H-1B new rule that may give precedence to these being provided degree 4 wages and the $100,000 H-1B price that was upheld by a federal district court docket.
I’ve opined that with the $100,000 there will likely be fewer H-1B petitions filed on behalf of beneficiaries outdoors the US and a lot of the beneficiaries competing for the restricted 85,000 H-1Bs per 12 months will likely be primarily college students within the US in F-1 standing. They might have a greater probability of choice even when they aren’t paid the highest-level wage.
Whereas the $100,000 could assist college students in F-1 standing within the US, it won’t profit employers who have to additionally rent employees primarily based abroad particularly nonprofits, universities and startups. Even those that had been beforehand counted beneath a previous H-1B lottery however are primarily based abroad, a brand new petition filed on their behalf must be accompanied by the $100,000 price.
The 2 actions from the Government Department won’t simply kill the H-1B visa program however may also stymie innovation and forestall the entry of gifted overseas nationals who will finally contribute to the US. It’s hoped that courts will discover each the actions illegal and opposite to the INA.
