A Major Shift for Employers Sponsoring H-1B Workers
U.S. employers hiring foreign nationals face a rapidly changing landscape as 2025 draws to a close. A new $100,000 H-1B fee, proposed changes to the 2026 H-1B cap lottery, and the reopening of the FLAG system are already influencing workforce and budget planning.
“These are some of the most consequential updates we’ve seen in years,” says Rosanna Berardi, Esq., Managing Partner at Berardi Immigration Law. “Employers need to move from reactive to proactive, building compliance strategies and budget contingencies now rather than waiting for formal implementation dates.”
Below, our team breaks down what’s changing, who’s impacted, and how to prepare for the 2026 cap season.
The $100,000 H-1B Fee: Who’s Impacted
What It Is
A September 19, 2025 presidential proclamation directs the Department of Homeland Security (DHS) and U.S. Citizenship and Immigration Services (USCIS) to require a $100,000 supplemental fee for certain new H-1B petitions, primarily when the beneficiary is outside the U.S. The fee would apply for 12 months after the effective date, though multiple lawsuits are underway.
Likely Impact
Employers should plan for potential exposure in these scenarios:
- Cap-subject new H-1Bs: Most affected, especially cases for beneficiaries abroad at the time of filing.
- Cap-exempt new H-1Bs: Universities, research institutions, and nonprofits may still be included unless specifically exempted in final DHS guidance.
- Extensions and amendments: Appear unaffected for now but confirm case-by-case as USCIS guidance evolves.
- Litigation watch: Lawsuits led by major business coalitions (including the U.S. Chamber of Commerce) could delay, block, or narrow the rule’s reach. Employers should budget conservatively but be ready to pivot quickly if injunctions are issued.
In certain cases, National Interest Exceptions (NIEs) may apply. Petitioners could argue exemption eligibility by demonstrating that:
- The role is difficult to fill with U.S. workers;
- The position serves the national interest; and
- The beneficiary faces no other bars to entry.
2026 H-1B Cap Registration: Weighted Lottery on the Horizon
DHS has proposed a new H-1B cap registration system that could significantly alter selection odds. Instead of a purely random draw, registrations could be weighted based on the wage level entered at registration.
What Employers Should Know
- Higher wage = higher odds: Positions at Level 3 or 4 would likely enjoy a higher chance of selection than Level 1 roles.
- Strategic role design: Employers may wish to prioritize senior or specialized roles for registration or re-evaluate early-career positions to ensure appropriate wage levels.
- Still a proposal: The weighted model isn’t final, but DHS has signaled it could be implemented in time for March 2026 registration.
Berardi notes, “The new model rewards employers who align compensation and job complexity early. Waiting until registration week to decide wage levels could mean missing out entirely.”
LCAs and the FLAG System: Filings Resume, but Expect Delays
After weeks of disruption tied to the government shutdown, the Department of Labor (DOL) has restored the FLAG system, allowing employers to file:
- Labor Condition Applications (LCAs)
- PERM Labor Certifications
- Prevailing Wage Determinations
The Office of Foreign Labor Certification (OFLC) cautions that it’s still clearing backlogs. Employers should expect longer processing times through late 2025 and file as early as possible to avoid delays that could cascade into the March 2026 registration window.
Preparing for the 2026 Timeline
November – December 2025: Map roles to DOL wage levels, begin LCA pipeline in FLAG, identify any candidates abroad who may trigger the $100K fee.
January 2026: Finalize compensation and job descriptions; confirm which roles will be registered for H-1B.
February 2026: Conduct dry-run registration; monitor final DHS guidance on weighted selection and fee litigation outcomes.
March 2026: Registration period; verify that wage data is accurate, documented, and consistent across filings.
How Berardi Immigration Law Can Help
Our team works directly with employers to navigate every stage of the H-1B process, from wage analysis and LCA filings to registration strategy and litigation monitoring.
“We’re advising clients to scenario-plan now,” says Berardi. “That means identifying affected roles, setting budgets that anticipate the $100,000 fee if needed, and mapping wage levels in advance of registration.”
With decades of experience in employment-based immigration and a strong focus on compliance strategy, Berardi Immigration Law helps employers stay ahead of fast-moving policy shifts.
H-1B FAQs
Will the $100,000 fee apply to H-1B extensions or amendments?
Current indications suggest the fee targets new H-1B petitions, particularly for beneficiaries outside the U.S. However, final guidance from DHS/USCIS may clarify specific exemptions, so monitor updates closely.
When will the weighted H-1B lottery rule take effect?
DHS has not announced an exact date but has indicated it aims to finalize the rule before March 2026, when registration opens for the FY 2027 H-1B cap.
What should employers do now that the FLAG system is back online?
Start filing LCAs and prevailing wage requests immediately. Expect some delays due to backlogs and plan for early submissions to align with spring 2026 registration timelines.
Don’t Get Lost In The H-1B Overhaul
The H-1B landscape is entering a period of significant transition; financially, procedurally, and strategically. The $100,000 supplemental fee, potential weighted lottery, and LCA processing delays all point to one clear takeaway: early preparation is critical.
Berardi Immigration Law continues to monitor each development closely and will provide timely updates as litigation and rulemaking evolve. Employers planning 2026 H-1B filings should begin aligning budgets, wage data, and internal workflows now to stay compliant and competitive.
If your business has questions about immigration compliance, contact the team at Berardi Immigration Law today. We can help you stay ahead of the changing immigration landscape, and continue to be successful across borders.
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