The H-1B Lottery Is Not a Launch Plan: A Contingency Calendar for Canadian Founders and Executive Hires

Written October 23, 2026. Reviewed by Rebecca Bentley, Esq.

TLDR:

• The H-1B process happens in stages. Registration, selection, petition approval, premium processing and admission at the border each unlock something different, and none of them guarantees the next one.
• For the FY 2028 cap season, registration is expected in March 2027, and the earliest H-1B start date is October 1, 2027. If the registration isn’t selected, the next relevant cap-subject H-1B start date would be October 2028.
• Canadian founders and executives may have other options, such as TN, L-1A, E-1/E-2 or O-1. Whether any of them fits depends on the facts, so test that question before your board approves dates, not after the lottery results come in.

Your U.S. entity is formed. The board has approved the expansion. A senior hire has a start date, a lease is being negotiated, and a family is choosing schools. Then someone asks the question that should have come first: what happens if the H-1B registration isn’t selected?

For a Canadian company moving people and capital south, that question is a planning issue, not a technicality. The H-1B cap process runs on a fixed federal calendar that pays no attention to closing dates, financing tranches or board meetings. A launch plan built on the assumption of selection is a plan built on a draw.

This guide maps what each stage of the H-1B process actually authorizes, where the decision points fall for the FY 2028 cap season, and how to build a contingency into the plan before commitments become expensive to unwind.

What Changed: The New H-1B Lottery Rules

The H-1B “lottery” is no longer purely random. Under a Department of Homeland Security final rule that took effect on February 27, 2026, USCIS now uses a weighted, wage-level-based selection process. Each registration is entered into the pool between one and four times, depending on which Department of Labor wage level (Level I through IV) the offered salary meets for that occupation and location. A Level IV offer gets four entries. A Level I offer gets one.

The FY 2027 season, which took place in March 2026, was the first under this weighted lottery system. USCIS reported roughly 211,600 eligible registrations, down about 38.5% from the prior year. The agency announced on July 17, 2026, that the cap had been reached, and it ran no second selection round.

Two takeaways matter for senior hires:

1. Higher wage levels improve the odds, but they don’t guarantee anything. An executive offered a Level IV salary is more likely to be selected, not certain to be.
2. The registration is now a strategic document. The occupation code, worksite and wage level entered at registration must match the later petition and Labor Condition Application. USCIS has authority to deny a petition where registration details appear designed to inflate the odds of selection. Those details need to be settled with counsel before registration opens, not adjusted afterward.

The $100,000 Fee: Where It Stands

A September 2025 presidential proclamation imposed a $100,000 payment on certain new H-1B petitions for workers outside the United States. That category can include Canadians who will enter the U.S. on an approved petition. A federal court in Massachusetts vacated the fee policy in June 2026, and the First Circuit declined to the government’s request to maintain an administrative stay on the court order vacating the fee in July 2026. Notwithstanding the recent court order vacating the H1B fee policy, a new presidential proclamation was issued on September 18, 2026, extending the fee through September 21, 2027, but court rulings have kept collection blocked.

As of mid-October 2026, the fee is not being collected. The government continues to appeal, so its status could change with little notice. Any H-1B budget for 2027 should account for that possibility.

What Each Stage Authorizes, and What It Doesn’t

This is where launch plans most often go wrong. Each milestone in the H-1B process is a gate, not a finish line.

For a Canadian executive, admission is the step that matters most and gets the least planning attention. Canadians generally don’t need an H-1B visa stamp from a consulate. They present the approval notice and supporting documents to U.S. Customs and Border Protection, which makes its own admission decision.

The FY 2028 Decision Calendar

USCIS has not yet announced FY 2028 dates. The windows below follow the pattern of recent cap seasons and should be confirmed once the agency publishes them.

The Decision Gate: Does the Executive Have a Viable Alternative?

Canadian citizens have access to several U.S. work options that don’t depend on the H-1B cap. Each one has its own requirements, and none of them is automatically available. Ask these questions before the board commits to a date:

• TN (USMCA professional): Does the role fall within one of the specific professions on the USMCA list, and does the person hold the required credentials? General management and executive roles often don’t fit, and recent scrutiny of TN applications makes careful framing more important.
• L-1A (intracompany executive or manager): Has the person worked for a related Canadian company for at least one continuous year in the past three years, in a qualifying role? If the U.S. office is new, can the company show the space, funding and staffing plan that the new-office rules require?
• E-1 treaty trader or E-2 treaty investor: Is the company at least 50% owned by Canadian nationals? Is there substantial trade with the U.S., or a substantial investment at risk in the U.S. business? Canadians must apply for E visas through a U.S. consulate, which adds its own timeline.
• O-1 (extraordinary ability): Does the person have a documented record of sustained national or international recognition in their field?

If the answer to one of these is clearly yes, the H-1B may become a backup or drop out of the plan entirely. If every answer is uncertain, the H-1B stays in the plan, but the launch calendar should assume an October 1^st start at the earliest and at least a full year’s delay at worst.

What Companies Should Do Next

• Separate the business calendar from the immigration calendar. Board approvals, financing milestones and leases can move forward. Employment start dates for cap-subject hires should be conditional.
• Make offers contingent and specific. Tie start dates to petition approval and admission, not to selection.
• Build an interim staffing plan. Some work can continue from Canada during the wait. The line between remote work for a U.S. company and unauthorized work in the U.S. is worth reviewing with counsel, especially for executives who travel frequently.
• Watch the policy environment. The weighted selection rule, the $100,000 fee litigation, and a September 2026 executive order calling for closer review of H-1B filings all point to a system under active scrutiny and change.

Planning a U.S. Launch with Fewer Surprises

A cross-border launch has enough moving parts without a federal lottery deciding when your leadership team can start work. The companies that handle this well don’t hope for selection. They map every commitment against the immigration calendar, test the alternatives early and know in advance what they’ll do if the result comes back “Not Selected.”

Berardi Immigration Law has guided Canadian and U.S. companies through cross-border expansion for more than two decades. If a U.S. launch, acquisition or senior hire is on your calendar, book a consultation with one of our team of skilled attorneys to build an immigration strategy that fits the business timeline. Nobody should navigate immigration alone.

FAQs

Q: How do I check my H-1B lottery status?

The employer or its attorney checks the registration in the employer’s USCIS online account. Statuses include “Submitted” (still eligible for selection), “Selected” (eligible to file a petition) and “Not Selected.” The candidate doesn’t receive a separate notice from USCIS, so the employer or counsel should share the result.

Q: Can a Canadian executive start working in the U.S. once the H-1B petition is approved?

This depends. For cap-subject petitions, H-1B employment can’t begin before October 1st of the fiscal year, even if approval comes in the summer. The executive also has to be admitted in H-1B status at a port of entry or preclearance before starting U.S. work, unless a change of status was granted.

Q: Does a higher salary guarantee H-1B selection under the new rules?

No. Under the weighted system, offers at higher Department of Labor wage levels get more entries in the selection pool, which improves the odds. Selection is still not guaranteed, and the wage level registered must match the later petition.