What is an H-1B?
The U.S. immigration system offers a range of nonimmigrant statuses, or types of permission, for people to be in the U.S. The H-1B is one such status that allows individuals to work in a “specialty occupation” for a U.S. employer. A specialty occupation carries duties that cannot be done by someone without a college or university degree in a specific field of study. The employer must also pay a certain wage, but employers do not have to show a shortage of U.S. workers for the position.
Individuals who have jobs or job offers from U.S. employers and who have never held H-1B status must first go through the H-1B lottery. The exception is if the employer is a college, university, non-profit research organization, or government research organization.
What and when is the H-1B lottery?
There are only 85,000 new H-1B numbers each year. For those individuals who have never held H-1B status, their employer must register them in a lottery that occurs at the beginning of each March. It is only after they have been selected in the lottery, that the employer can file a petition to seek H-1B status for the individual. Registration and filing the petition are two separate processes.
Can anyone register for the H-1B lottery?
Only U.S. employers who are offering individuals a bona fide job offer can register someone for the H-1B lottery. Individuals cannot register themselves for the H-1B lottery.
Is the registration fee $100,000?
No. The H-1B registration fee is $215. The $100,000 fee does not come into play until after one is selected in the lottery and only if the individual is not currently maintaining legal status in the U.S. Individuals for whom an employer will be registering and filing an H-1B petition who are already in the U.S. in legal status are not subject to the $100,000 fee. (Check out our news posting on October 20, 2025: https://clarklau.com/news/p2).
Even for those who could be subject to the $100,000, an employer does not have to pay the $100,000 until the individual is chosen in the lottery and until the employer files the H-1B petition.
There are a number of lawsuits in play regarding the validity of the $100,000 fee. While we cannot predict the outcome of these lawsuits, for those employers who are willing to take the risk, they can register individuals who are potentially subject to the $100,000 fee into the lottery and then decide later whether to file the petition or not if they are chosen in the lottery. The lottery will not wait for the lawsuit results so one could miss out on this year’s lottery.
The rule also provides a “National Interest Exception” to the $100,000 fee, but to date, we have not received any guidance or heard of anyone receiving such an exception.
Does salary impact one’s chances at the lottery?
On December 29, 2025 the U.S. immigration service finalized and published a new rule that would favor those offered higher wages.
When an employer files an H-1B petition, the employer must have a bona fide job offer and the employer must promise to pay the higher of (a) the prevailing wage determined by the U.S. Department of Labor or (b) the wage that the employer is paying similarly employed individuals. The prevailing wage is determined by the occupation and the location where the job is performed. Prevailing wages consist of four levels, where Level 1 is an entry level position and the levels increase to Level 4 per the complexity of the duties and the job requirements.
According to the new rule, if an employer is offering a wage that is at or above the Level 4 prevailing wage of the occupation and location of the job, then the employer’s registration will have four chances to be selected in the lottery. If the wage is between the Level 3 and Level 4 prevailing wage of the occupation and location of the job, then the employer’s registration will have three chances. If the wage is between the Level 2 and Level 3 prevailing wage of the occupation and location of the job, then the employer’s registration will have two chances. If the wage is between the Level 1 and Level 2 prevailing wage of the occupation and location of the job then the employer’s registration will have just one chance. If a wage range is used, the chances will be determined by the wage at the lower end of the range. If the job will be performed in multiple locations resulting in multiple prevailing wage levels, then the lowest prevailing wage level will be used.
The government calls this the weighted-H-1B lottery whereby those registrations with higher wages will receive more chances.
Does having a master’s or higher degree from a U.S. institution still have an advantage?
In past years, the government conducted one round of the H-1B lottery for everyone to select enough registrants for 65,000 H-1B numbers. Then, the government would conduct a second round for the remaining registrants who have a master’s or higher degree from an accredited U.S. institution for an additional 20,000 H-1B numbers. The new rule maintains these two rounds and therefore it is still more advantageous to have a master’s or higher degree from a U.S. institution.
Can an employer register someone who is not an employee yet or someone who is not in the United States?
Yes, the employer can register anyone so long as there is a bona fide job offer to the individual. The job offer must also indicate the locations where the job will be performed and the offered wage in order for the government to determine how many chances to provide the registration. For those individuals who are not in the U.S. maintaining legal status, however, the $100,000 fee could apply when the time comes to file the actual H-1B petition.
Does an employer have to pay the offered wage before the lottery?
No. The employer only has to offer the wage. In fact, the lottery is conducted for new H-1Bs and these technically do not take effect until October 1, 2026, when the new federal fiscal year starts. For this reason, the employer only needs to pay the offered wage on and after October 1, 2026.
Can an employer register someone who is a citizen or was born in one of the high-risk countries?
Yes, currently there is no prohibition regarding individuals who were born in or who are citizens of any of the countries listed on the White House’s list of high-risk countries. (Check out our news posting on January 2, 2026 for a list of the high-risk countries: https://clarklau.com/news). Please note however that if such an individual is selected and while the employer may be able to file an H-1B petition for the individual, adjudication of the petition is currently paused. We will continue to monitor this area.
What if the job or the wage changes?
H-1Bs are specific not only to the employer, but also to the terms and conditions of the offered job, including the job location and the wage. When these change, the employer must file an amended H-1B petition. The new rule has indicated that the government reserves the right to revoke a previously approved H-1B petition if the employer has been using a higher wage to game the lottery system.
When registering an employee for the H-1B lottery in March, the employer has to provide wage and location information. If the registration is chosen, then the employer must file a petition within a certain window, but for terms and conditions of a position that technically starts (or continues) on October 1, 2026. If there are changes that impact the wage downward, the new rule indicates that the government has the right to revoke the petition.
The above information was provided for educational purposes. Feel free to contact your Clark Lau LLC attorney to see the above information applies to you. We will continue to monitor the news and keep you updated.