Major H-1B Visa Changes: New Rules for H-1B Visa Lottery and $100K Fee Upheld

In September 2025, the Department of Homeland Security (DHS) proposed to change the H-1B lottery selection process. The winners of the annual H-1B lottery are foreign national hires who can then be sponsored by U.S. employers to temporarily work in certain specialty occupations that require at least a bachelor’s degree. After accepting comments, DHS released its final rule on December 29, 2025, without any changes to the previously proposed language. The new rule will increase the odds of selection for highly paid beneficiaries and decrease the odds of selection for lower paid beneficiaries, including entry-level employees.

Impacts of the Rule

• Beneficiaries assigned to the highest wage level will be entered into the lottery four times, increasing their odds of selection to 61% (an increase of 107%).
• Beneficiaries assigned to the second highest wage level will be entered into the lottery three times, increasing their odds of selection to 46% (an increase of 55%).
• Beneficiaries assigned to the third highest wage level will be entered into the lottery two times, increasing their odds of selection to 31% (an increase of 3%).
• Beneficiaries assigned to the lowest wage level will be entered into the lottery one time, decreasing their odds of selection to 15% (a decrease of 48%).
• DHS has discretion to deny H-1B petitions when it determines that the petitioner has made improper attempts to increase their chance of selection, so employers should plan carefully in advance of the H-1B lottery, to ensure that the wage selections and lottery entries withstand scrutiny under the new rule.

The changes to the H-1B lottery will take effect on February 27, 2026, in time for the next H-1B lottery in March 2026. For more details on how the lottery will operate, see Akin’s previous alert on the proposed rule.

Summary of Comments and DHS’s Responses

During the 30-day comment period, commenters in support of the new rule noted that it creates a more merit-based system that offers greater protection for U.S. workers and increases transparency in the selection process. However, other commenters expressed concern that the rule creates a “pay-to-play” system that favors well-funded petitioners while harming early career professionals and smaller companies. In response, DHS stated the changes are aimed at preventing the allocation of most H-1B visas to low-wage workers. DHS stressed that, while young professionals may have a reduced chance of selection, they at least still have a chance under the new rule, as opposed to a 2021 proposed rule that would have essentially barred the lowest wage earners from selection. Finally, DHS stated that although startups and other small companies relying on entry-level employees may face increased costs in bringing in workers through the new H-1B lottery selection process, their chances of hiring top talent will likely increase.

New $100,000 Requirement for H-1B Petitions Upheld by Court

During the same week as the DHS’s publication of the revised H-1B lottery selection process, the federal court in the District of Columbia ruled in one of the three lawsuits filed to enjoin the administration from imposing a $100,000 fee on new H-1B petitions.

In September 2025, President Trump issued Proclamation 10973, which requires a $100,000 payment in connection with new H-1B visa petitions filed for beneficiaries outside of the United States. The Chamber of Commerce and the Association of American Universities filed suit against DHS and the Department of State, seeking to enjoin the implementation of the Proclamation, claiming that it exceeds the scope of the President’s authority under the Immigration and Nationality Act (INA) and, therefore, any action implementing the Proclamation is ultra vires and must be set aside under the Administrative Procedure Act (APA). After hearing arguments on December 19, 2025, Judge Beryl A. Howell granted the government’s cross-motion for summary judgment, upholding the fee.

The Chamber’s primary argument was that the President exceeded his authority and introduced a fee requirement that contradicted the INA. In its opinion, the court repeatedly referenced the INA’s plain text that shows a broad delegation of authority to the President to impose “any restrictions he may deem to be appropriate” on the entry of immigrants. Although the court agreed that the grant of authority was very broad, it found that the Proclamation had appropriate limitations: it only lasts for twelve months and is limited to new petitions for prospective H-1B workers who are currently outside the U.S.. In response to the Chamber’s argument that the $100,000 requirement improperly competes with Congress’s determination of fees for immigration petitions, the court determined that the $100,000 requirement is separate from the fees permitted by Congress, and thus, not in contravention of the INA. The court also noted that while the Chamber credibly showed that the $100,000 requirement could harm the U.S. economy, the question before the court was ultimately one of constitutional and statutory analysis, not economic policy. In light of Congress’s broad delegation of authority to the President, the court held that the government’s implementation of the Proclamation was valid.

On December 29, 2025, the Chamber filed a notice of appeal in federal court in Washington, D.C. In addition to the Chamber’s lawsuit, the $100,000 fee is challenged in two additional lawsuits, including a lawsuit brought by a group of state attorneys general.

Strategy for Upcoming H-1B Lottery

In light of the new H-1B lottery selection rule and the DC District Court upholding the $100,000 fee for new H-1B petitions, companies will need to be strategic in their selection of potential hires to include in the H-1B lottery in March 2026. It will be important to evaluate the position requirements and the prevailing wages that those requirements correspond with, along with compensation structures that will provide the best odds for lottery selection. At the same time, considering exceptions to the $100,000 fee and focusing on the categories of beneficiaries that fall under those exceptions, including beneficiaries on other types of visas already in the U.S., will be important. Akin attorneys are available to advise companies on these strategic considerations and help determine the list of potential hires for inclusion in the H-1B lottery.