H-1B Planning Starts Now: Winning Strategies for the Next Cap Season

Livestream originally aired October 29, 2026.

Transcript:

H-1B season is just around the corner and there’s a lot we have to know to get prepared who’s ready i know we are here at brady immigration law we practice employment based immigration every single day but there’s a lot of moving parts to the H-1B category and in today’s call we are going to be going over what has changed what employers need to understand and what they should be doing right now to improve their people’s chance of success in the lottery this year.

So before we dive right into all the juicy details, let’s first take a step back for those who may not be completely familiar with the H-1B category. What is this visa all about? Let’s break it down. So H-1B is what we call the specialty occupation visa category. That’s just a funny phrase and basically says, hey, if somebody has at least a bachelor’s degree in a specific field and they have a job offer at a U.S. employment company, a U.S. company that in fact requires that kind of education possessed by the applicant, then for all intents and purposes, it should be a good fit. So for example, if you have a degree in computer science and you have a job offer as a software engineer, that’s a pretty close nexus between somebody’s education and their experience.

But the key part here is, does the position itself require at least a bachelor’s degree? Now, sounds simple enough. We have lots of people in the United States who have bachelor’s degrees and job offers in the U.S., Major problem, however, is that Congress limits the amount of visa numbers it gives to new applicants every year. What that specifically means is Congress has only given sixty five thousand visa numbers to all applicants who have never before received an H-1B visa. And an additional twenty thousand for individuals who have a master’s degree or higher from the United States. But historically, we have hundreds of thousands of people every year who show demand for wanting this visa.

So what does the government do? Well, folks, we have a lottery. This lottery takes part. It takes place every March. And what happens is interested applicants and their employers submit a registration online through My USCIS, an online portal. And by the end of March, we will have found out if that individual has in fact been selected. If they’ve been selected, then we can proceed with filing an H-1B petition. We have until June 30th to do this. And if the individual is selected and approved, their petition is approved, they can begin working in H-1B status on October first. So just some interesting things, statistics. I said there’s hundreds of thousands of people that apply, yet we only have about 85,000 available visa numbers.

So just last year, there were over 360,000 registrations. That was a thirty five percent selection rate now. It was up from twenty nine percent the year prior, but nevertheless, not the greatest numbers. But for most people, it’s the only option that they have. Now, of all of these registrations, it represented 57,000 different employers who were gambling on the system. And of those who were selected, at least 57% had a US master’s degree or higher. So automatically, folks, if you have a candidate in mind who has a master’s degree or higher from a US institution of higher education, that person automatically has a higher chance of selection.

So. We know the basics here. What’s a good case? You have at least a bachelor’s degree in a specific field, a job offer that requires at least a bachelor’s degree in that particular field. And there’s a close nexus between what their job duties are and what their education was. But how do we really assess? Well, the first thing I do is I say, okay, well, let me see a copy of the job description to determine whether this is a specialty occupation role. If you have a foreign national employee or an interested candidate that comes forward that says, I want an H-I-B, what are we looking at? Well, we look at the job description, as I just said.

Then we look at that individual’s resume. What are their credentials? And now another thing we have to look at is where they’re going to be working, okay? Why does that matter? That matters, folks, because a huge hallmark of the H-1B system is that individuals must be getting paid a fair wage for the position offered them in the geographic location in which they sit.

Now, the Department of Labor breaks down very clearly that depending on somebody’s standard occupational code, basically their occupational category, They should be earning a certain amount bending on, again, where they’re located and what the progressively responsible duties of the position are. So actually, the Department of Labor breaks down wages into four different levels. So the first level is for all new market entrants, a position that doesn’t really require a ton of education or experience beyond a bachelor’s degree. It’s for people who are recent grads. It’s for individuals who are at the start of their career. And as you work your way up the wage levels to level four, these are going to be not only the highest paid individuals, but the most experienced, the ones who may require the most special skills or supervisory duties.

These are the people who have most likely been in the field for a little bit longer than a new market entrance. Now, So as part of this H-1B process, we have to determine, is the offered wage that you as employer are giving an employee fair and consistent with the H-1B regulations? And assuming that the wage level you are offering that individual meets or exceeds the position requirements and where it matches up with the wage levels, according to the Department of Labor, then it should be a good fit.

One of these things that come to mind is we have to really make sure that whatever occupational category we say that that person’s position is most closely akin to is completely hammered down because one wage category might have very different wage results for another category. And sometimes as attorneys, we have to work with lawyers to make sure, whoa, there’s a big wage discrepancy between what you are offering that person and what the Department of Labor says you should be paying that person. Do we have to play around a little bit with the occupational category to make sure we’re on the right track? And what this all culminates in is as part of the H-1B process, before we can submit a petition to US Immigration Services, Citizenship and Immigration Services saying, hey, we are applying for an H-1B for this person.

Here’s where they qualify. We also have to get something called a labor condition application from the Department of Labor. certifying that you will be paying this person a fair wage for their geographic market, for the occupational category that they will be working in. Now, where is this becoming a little bit of a hot topic is The fact that last year, USCIS rolled out a new weighted, wage-weighted H-1B selection process. So take everything I just told you about determining wages. But last year, what USCIS said is, hey, we’re going to give you basically more bites at the apple, more votes, more votes. possibility for having your name drawn during a randomized selection process if you are getting paid at the highest age end of that wage scale so if your offered salary is most akin to a level four wage that the department of labor ascribes for your particular occupational category in your particular geographic region you’re going to have a higher chance of getting selected than somebody who’s only getting paid a level one wage.

Now, why is this problematic? Well, the vast majority of people who are applying for an H-1B visa are new market entrants. These are foreign nationals who obtained an education in the United States or a foreign education and who are now starting their career. They are they have a job offer with a U.S. company, and now they’re trying to start their their career in the United States. So as you can imagine, there was still quite a lot of individuals who were selected that did not have a level four wage. Although the statistic from last year is that approximately forty six percent of selected registrants were wage levels three and four combined.

Seventeen point eight percent were wage level one. So what are these numbers tell me? Well, if I was an employer or an interested applicant and I’m concerned about my wage not being a three or four, as you can see here, less than fifty percent of those who submitted registrations were wage level three and four. You’re not going against everybody who has three and four. What ultimately happened that we saw more as a firm was not so much that people with level four wages were getting selected, but still that those who have a master’s degree or higher, that was more of a likely indicator of your being selected. And I know a lot of colleagues and a lot of other businesses that reported the same kinds of findings.

But what’s the takeaway here? The takeaway, and we’ll get into a timeline of what you should be working on as the next few months go by, but the takeaway here is that as you start to think about who you want to sponsor in this year’s lottery, you should be thinking about things like job descriptions, compensation, and prevailing wage levels before registration opens. OK, the other hot topic that everybody and their brother has heard about is the one hundred thousand H-1B fee rule and one hundred thousand dollar, I should say, H-1B fee rule. And that all came out in September twenty twenty five when the Trump administration blessed us with this overnight bomb, basically saying that if you’re not in the United States already in a different status and you want to apply for an H-1B fee, Visa in the lottery.

Guess what? Your employer is going to have to cough up a cool one hundred thousand dollars in order to sponsor you, which obviously caused crazy outrage and mayhem and panic. And what you need to know about that rule is that a court has vacated that rule. But in the meantime, the Trump administration has a new proposed rule because they don’t go down without a fight. Got to give it to them. they have a new proposed rule saying, you know what, we re-evaluated things. And actually, we need a one hundred and three, two hundred and sixty five thousand dollar fee now for anybody who wants to go in the H-1B lottery.

And we don’t care if you’re already here in a different status or where you are. Every applicant’s employer needs to pay a one hundred and three thousand dollar fee per application in order to apply. Now, this is just a proposed rule. And by the way, that fee would only be due once the registration has been selected. So this is a selection process is over. We can now proceed to filing the H-1B. Then you have to pay that fee. What are we going to do with it? What’s going to happen here? Well, what’s going to happen here is this is obviously going to be subject to substantial litigation if this proposed rule becomes final.

What do I think will ultimately happen? A court will throw it out. It’s ridiculous. But the whole point here is the chilling effect. It’s not so much of wanting to see this actually come to fruition. It’s the chilling effect that it has on employers and on individuals who are hoping to start their their career path in the United States. But what is my response to that as an attorney? Be mindful of it, but do not let it stop you. What we have seen systematically with this Trump administration is they drop a bomb that often is not rooted in law. just to get the headline, just to have that chilling effect.

And ultimately, a court will throw it out, not without laying waste of time and resources in between and causing panic and mayhem. But nevertheless, it really isn’t something that I think is going to ultimately go through and prevent you and your employees from pursuing this path. So be mindful, but proceed forward is my recommendation. Okay. So a lot of the individuals who are applying for an H-1B are, as I said previously, are foreign national students here in the United States.

Now, every foreign national student upon graduation is entitled to a one year period of work authorization called OPT, Optional Practical Training. And in that one year period, The government also allows that student to work with a particular employer who has the ability to thereafter sponsor them for an H-1B. Additionally, if that student has a degree in a STEM field, they may also be eligible to obtain an additional two-year OPT period, which gives you three years of work authorization and therefore three chances at putting your name in the H-1B lottery. And again, here’s something I want every employer to know. Don’t say if you have an employee and you’re just starting out with them, it’s their first year, but you think you like them, you want to keep them on.

Don’t say, ah, they have two more years after this year. We’ll just put them in the lottery then. No, you are playing a game of odds. Put them in the lottery every single year you can to drive up that person’s chance of selection. But what happens with the situation where somebody’s opt expires before October first which is the statutory start of H-1B for all those who were selected and had their petitions approved well fortunately the government has something called cap gap which is this understanding that sometimes your opt expires between April first and October first and if if that’s the case What do we do? Well, the rule is so long as this is not only for individuals who have been selected in the lottery, so long as you submit their H-1B petition before their OPT expires after April first, that person can actually continue to work in the United States and live in the United States until the following April first while you wait for the case to be processed by USCIS and a decision is rendered.

So what does that mean again? If your EAD, the employment authorization document expires between April first and October first of that upcoming year, they can continue to live and work in the US as long as their H-1B petition is submitted before their OPT expires and they can stay through April first waiting for resolution of their case. All right, another important topic for conversation for these F-I students is from time to time we get employees who tell us, I really want to go leave the United States. I have to depart for some reason, and then I’ll come back. I want to be very clear. Only in life and death situations do we ever tell our clients that you should actually depart the United States.

It’s very complicated because if you have already filed a petition, and this is after your petition has been filed, if you’ve already had an H-1B petition filed for you and then you depart the United States, you will be able to reenter on your F-B visa if it’s still valid. But in order for your H-1B status to thereafter become activated, most likely you will then have to depart the United States once more, get an H-1B visa stamp, and then reenter the United States on an H-1B visa once your H-B petition has been approved. There’s a lot of moving parts here. Short answer, keep your life simple. Don’t leave the country. Okay, something for employers to know here.

H-1Bs are unique in that all costs associated with the H-1B category must be paid by employers. Let me say that again. All costs must be borne by the employer. That’s legal fee and that’s filing fees. Now there is one exception. There’s something called the premium processing fee that gives you an answer within fifteen business days. The employee can elect to pay that. But otherwise, everything else, these are Department of Labor rules, must be paid for by the employer.

All right. And these costs will include legal fees, and there are various filing fees that the government imposes with this that are going to be the level of which will be determined by the headcount in your organization. If you have fewer than – twenty-five or fewer employees, it’s going to be a smaller fee set. If it’s an employer that has more than twenty-five employees, Well, then you’re going to have fees in the higher end of the bracket. So another thing employers need to know beyond the wage obligations that we discussed earlier is that there’s many compliance activities that the Department of Labor and Congress imposed when we had the H-1B category created.

And two of those are most important for employers to be aware of. One is that remember that labor condition application I talked about, which is where you have to demonstrate to the Department of Labor that you will pay that individual a fair wage. Well, before you file that or while that’s pending, you must also give public notice to your other employees at that individual’s intended work site of your intention to hire an H-1B worker and post the LCA or notice that an LCA has been filed. Additionally, there is something called the public access file you must maintain showing that you, with all the required documents in it to demonstrate that you have fairly assessed the wage, fairly imposed the wage, and you have followed all the required steps for sponsoring an H-1B worker.

Then the question always happens, what can I do if my candidate is not selected in the lottery? And what I would say to that is there are a whole alphabet soup of options that theoretically exist, but doesn’t necessarily mean they’re going to work for the individual. The most common thing that individuals do is wait for the next cycle to apply, whether they are still in the United States on OPT or if they have departed the United States and are perhaps working remotely for your company from abroad.

Another option that students tend to follow is something called day one CPT. This stands for curricular practical training. It’s when an individual goes back to school, essentially, but with a certain program that allows them to begin working immediately as of the first day of classes. So that’s kind of a seamless transition from OPT to CPT. And then in the hopes that that year they get placed in the lottery again and are selected. There are other non-immigrant visa categories, but depending on where you are a citizen of, you may or may not be eligible depending on your financial circumstances or where you are a citizen of in terms of different treaties that exist.

It’s a There’s a lot of moving parts, but it’s often quite difficult for students and young people to transition to another visa category when they’re still at the beginning stages of their career, although it’s not impossible. But one of the best methods is, hey, if you’ve had this person on your team for years now, you really like them, you want to keep them, you should be pursuing permanent residence for them. That is the most clear cut way to ensure that they will be part of your team on a full time basis accordingly.

Now, what are some major mistakes I see as an attorney? Well, the first one is waiting until February to identify candidates. Now is the time you should be assessing who might possibly need to have sponsorship. The next one is assuming that every professional position qualifies. Again, if the job description does not require at least a bachelor’s degree in a specific field, it’s not going to be a viable case. Also, incorrectly identifying the prevailing wage level. You want to make sure that whatever you have offered that person meets H-B prevailing wage requirements, because if it doesn’t, you’re dead in the water right there. And that also goes with making, along with that, you also want to make sure that you are having the right SOC code, the standard occupational code.

You want to make sure that that student’s underlying status is solid. They are on solid ground between the time of March, whenever the selection happens in March, all the way through October first, when ostensibly the H-1B employment would begin. Make sure they are on solid footing. And then not keeping track of dates, not having a viable backup strategy is also something that can cause issues down the road.

So what should we be doing right now? As I said, identify all foreign national employees. And this is something you could do right through the end of the year and review their current immigration status and where they stand over the next one year, two years. And then look at their proposed position. Is it an H-1B eligible position based on the requirements of the role? Look at their salaries and the prevailing wage requirements. Is this a viable case?

Next, January through February, finalize that list of candidates. Confirm proposed positions, salaries, and work locations. Begin gathering employee documentation. And set up USCIS organizational accounts and determine the authorized signatories in your company and take those early steps to prepare for electronic registration. And then in March, we submit the registration. We’ll know by the end of the month if that individual has been selected. and begin final petition preparation for selected candidates. And then April through June, we have the ability to submit the H-1B petition.

Now, it is possible that you’ll get a request for evidence following the submission of your case. If that happens, then you have to deal with it in stride and see what additional evidence can we procure for the agency to help them really see that this individual is eligible for the visa category sought. RFEs, requests for evidence, are very, very popular in the H-1B world. And most of the time we are over able to overcome them, but it’s a reminder that when we are preparing these H-1B packages now more than ever, make sure you have a buttoned up narrative. You have all additional documentation in support of that narrative properly packaged in your submission to USCIS.

That’s a lot of information. I know that might be a little bit difficult to take all that in, but these are all really, really important processes. You know, one final thing I want to say too, these are not DIY applications, period. I highly recommend, doesn’t have to be us, use an immigration attorney when you are preparing this. It is never a smart strategy. There are too many moving parts. These are too technical. These are so many. These are filled with landmines. Make sure that whoever is preparing your case knows what they’re doing and is highly experienced in the field.

Well, thank you for joining. I’m Gabriella Agostinelli with Berardi Immigration Law, and I will see you on the next one. And good luck to all those who are in the lottery this year.