We hope this newsletter finds you well. In this edition, we bring you important updates on various immigration matters. Please take a moment to review the following key highlights:
DHS Replaces H-1B Lottery with Wage-Based Weighted Selection System
New Rule Effective February 27, 2026 – Applies to FY 2027 H-1B CAP Season
The Department of Homeland Security (DHS) published a final rule today fundamentally changing how H-1B cap-subject visas are allocated. Beginning with the FY 2027 registration season, U.S. Citizenship and Immigration Services (USCIS) will replace the current random lottery with a weighted selection process that gives preferential treatment to petitions for higher-paid foreign workers.
How the New Weighted Selection Works:
Under the new system, when USCIS receives more registrations than available visa numbers, registrations will be entered into the selection pool based on the beneficiary’s wage level relative to the Occupational Employment and Wage Statistics (OEWS) prevailing wage for the relevant occupation and geographic area:
|
Wage Level |
Times Entered in Selected Pool |
|
Level IV (highest) |
4 times |
|
Level III |
3 times |
|
Level II |
2 times |
|
Level I (lowest) |
1 time |
Each unique beneficiary is counted only once toward the numerical cap, regardless of how many times they are entered into the selection pool or how many registrations are submitted on their behalf.
New Registration Requirements:
Petitioners must now provide additional information at registration, including:
- The highest OES wage level that the beneficiary’s proffered wage equals or exceeds
- The Standard Occupational Classification (SOC) code for the position
- The area of intended employment
The same information must appear on both the registration and the subsequently filed H-1B petition, supported by evidence. USCIS may deny or revoke petitions if it determines the filing was designed to manipulate the selection process.
Administration’s Rationale:
“The existing random selection process of H-1B registrations was exploited and abused by U.S. employers who were primarily seeking to import foreign workers at lower wages than they would pay American workers,” said USCIS spokesman Matthew Tragesser. “The new weighted selection will better serve Congress’ intent for the H-1B program and strengthen America’s competitiveness by incentivizing American employers to petition for higher-paid, higher-skilled foreign workers.”
DHS cited data indicating that approximately 80% of H-1B visas currently go to workers at wage levels I and II, which the agency characterizes as inconsistent with congressional intent to attract “the best and the brightest” in the global labor market.
Economic Impact:
DHS estimates the rule will result in significant wage transfers from lower-wage H-1B workers to higher-wage H-1B workers:
|
Fiscal Year |
Estimated Wage Transfer |
|
FY 2026 |
$858 million |
|
FY 2027 |
$1.72 billion |
|
FY 2028 |
$2.58 billon |
|
FY 2029 |
$3.43 billon |
FY 2030 and beyond $4.29 billion annually
The agency estimates total benefits of $502 million in FY 2026, growing to $2.51 billion annually by FY 2030.
Connection to $100,000 H-1B Fee:
The rule aligns with Presidential Proclamation 10973, issued September 19, 2025, which imposed a $100,000 supplemental fee on new H-1B visa petitions. That proclamation directed DHS to initiate rulemaking prioritizing high-skilled, high-paid workers.
“As part of the Trump Administration’s commitment to H-1B reform, we will continue to demand more from both employers and aliens so as not to undercut American workers and to put America first,” Tragesser stated.
Key Dates:
- Final Rule Publication: December 29, 2025 (Federal Register)
- Effective Date: February 27, 2026
- First Application: FY 2027 H-1B cap registration season (expected March 2026)
What This Means for Employers and Foreign Workers:
For Employers:
- Level I positions face significantly reduced selection odds
- IT staffing companies and outsourcing firms will be most affected
- Employers must carefully document wage level determinations at registration
- Inconsistencies between registration and petition may result in denial or revocation
For Foreign Workers:
- Entry-level workers and recent graduates face lower selection probability
- Workers in higher-paying positions have substantially better odds
- Workers already in H-1B status (extensions, amendments, transfers) are not affected by the cap selection process
Industry Response Expected:
The rule is expected to face pushback from technology companies, IT staffing firms, and advocacy groups who have previously argued that wage-based selection disadvantages legitimate entry-level hiring and smaller employers unable to offer top-tier salaries. DHS received 2,731 comments during the rulemaking process, with commenters divided between those supporting protections for U.S. workers and those concerned about impacts on employers and foreign workers at all skill levels.
DOL Sends Proposed H-1B and PERM Wage Rule to OMB for Review
The U.S. Department of Labor (DOL) has submitted a proposed regulation revising wage rules for the H-1B nonimmigrant and PERM labor certification programs to the Office of Management and Budget (OMB) for review, marking the first formal step in the federal rulemaking process.
While the contents of the proposal remain confidential at this stage, the initiative is widely expected to increase prevailing wage requirements, potentially raising the minimum salaries employers must pay H-1B workers and offer in employment-based green card sponsorships under PERM.
What We Know So Far:
- The proposal is under OMB review, a prerequisite before public release
- If approved, the draft rule will be published in the Federal Register for public comment
- No changes take effect unless and until the rule completes the OMB process and is finalized
Context and Background:
During the first Trump administration, DOL finalized a rule in 2021 that would have restructured the four-level prevailing wage system, increasing wage floors across all levels. That rule was challenged in court and later abandoned after the change in administration. Although the Biden-era DOL initially signaled its own prevailing wage reform, the effort was delayed and ultimately removed from the regulatory agenda.
It remains unclear whether the current proposal mirrors the 2021 Trump-era rule or introduces a different framework.
Why It Matters:
If adopted, higher prevailing wages would:
- Increase labor costs for H-1B employers
- Raise the wage bar for PERM sponsorship
- Further narrow access to employment-based visas, especially for entry-level and mid-level roles
What’s Next:
Stakeholders should watch for the proposal’s publication in the Federal Register, which will trigger a public comment period and provide the first detailed look at the scope and impact of the changes.
This news item is for informational purposes only and does not constitute legal advice.
The End of the H-1B Lottery Era: Why Inbound H-1Bs Are Now Largely Shut Down — and F-1 Students Are at Risk
The combination of DHS’s wage-weighted H-1B selection rule and the now-upheld $100,000 inbound H-1B fee has fundamentally changed who can realistically obtain an H-1B going forward. Together, these two policies have effectively closed the door on most inbound H-1B hiring, especially for entry-level and mid-level roles.
Under the new system finalized by Department of Homeland Security and implemented by U.S. Citizenship and Immigration Services, selection odds now heavily favor:
- OEWS Wage Level IV (4 chances)
- OEWS Wage Level III (3 chances)
In many occupations and locations, this translates to total compensation approaching or exceeding $200,000. Lower-wage positions technically remain eligible, but their chances of selection are extremely low. At the same time, employers must now lock in SOC codes, worksites, and wage levels before registration, eliminating the old “register now, finalize later” approach.
When this wage prioritization is paired with the $100,000 H-1B Proclamation Fee for workers outside the United States, the result is clear:
Mass inbound H-1B hiring is no longer economically or practically viable for most employers.
Why This Is Especially Bad News for F-1 Students (Especially Indian Students)
For F-1 students graduating in 2026 and beyond, the impact is severe.
While OPT and STEM OPT remain available for now, the traditional pathway—F-1 → OPT → H-1B → Green Card—has been largely broken unless a student can secure:
- A Level III or Level IV wage, and
- A role that justifies senior-level or highly specialized compensation
For many students, especially Indian students, this is unrealistic immediately after graduation. Entry-level and early-career roles are no longer competitive under the new selection framework.
At the same time:
- NIW standards are tightening
- Prevailing wages are rising
- Employer risk and cost are increasing
This narrowing of options raises a serious concern: STEM OPT itself may come under future restriction, as the administration continues its broader effort to limit post-study work authorization.
The New Reality (Plain English)
- H-1B is no longer a mass employment visa
- It is now a high-wage, high-cost, senior-talent program
- Inbound H-1Bs are largely blocked by cost + selection rules
- Most F-1 students will not transition to H-1B without:
- Senior-level pay, or Alternative visa strategies (O-1, L-1, cap-exempt H-1B, etc.)
Bottom Line:
The era of the random H-1B lottery is over. The combination of wage-weighted selection and the $100,000 inbound H-1B fee has reshaped the program into one that serves only the highest-paid foreign professionals.
For most F-1 students graduating in 2026 and beyond, H-1B sponsorship will be extraordinarily difficult—if not impossible—without senior-level compensation or a different visa pathway. Early planning, alternative visa analysis, and realistic expectations are now essential.
This section is for informational purposes only and does not constitute legal advice. Immigration policy is evolving rapidly. Consult a qualified immigration attorney for individualized guidance.
Federal Court Upholds $100,000 H-1B Fee Imposed by Trump Proclamation
A federal district court in Washington, D.C. has upheld the legality of the $100,000 fee imposed on certain H-1B petitions, delivering a significant victory to the Trump administration and dealing a setback to business and higher-education groups challenging the policy.
In a decision issued yesterday, the court rejected a lawsuit brought by the U.S. Chamber of Commerce and the Association of American Universities, which argued that President Trump lacked authority to impose the fee through executive action. The court ruled that the September 19, 2025 Presidential Proclamation and related agency policies fall squarely within the President’s powers under Section 212(f) of the Immigration and Nationality Act (INA).
Court’s Reasoning:
Section 212(f) authorizes the President to suspend or restrict the entry of foreign nationals if their entry is deemed detrimental to U.S. interests. The judge concluded that this broad statutory authority allows the President to impose conditions and financial requirements—including the $100,000 fee—on certain inbound H-1B petitions.
As a result of the ruling, the $100,000 H-1B fee remains in full force and effect, reinforcing the administration’s broader strategy of prioritizing high-wage, high-cost employment-based immigration.
What Happens Next:
It is not yet known whether the plaintiffs will appeal the decision. Importantly, other legal challenges to the Proclamation and the $100,000 fee remain pending in separate cases, meaning the issue may ultimately reach higher courts.
Practical Impact:
For now, employers and foreign nationals must assume:
- The $100,000 fee is enforceable
- It applies to covered inbound H-1B petitions
- Combined with the new wage-weighted H-1B selection system, the fee significantly raises the cost and barriers for sponsoring lower-wage H-1B workers
Bottom Line:
The ruling solidifies the Trump administration’s aggressive reshaping of the H-1B program into a high-wage, high-cost system, at least for the near future. Unless overturned on appeal, the decision strengthens DHS’s position and signals that courts may be receptive to broad presidential authority over employment-based immigration under existing law.
This news item is for informational purposes only and does not constitute legal advice.
Two Paths to the American Dream: EB-5 Investor Visa vs. Trump Gold Card
Why Rural EB-5 Often Remains the Smarter Choice:
With the launch of the Trump administration’s Gold Card program in December 2025, foreign investors now face a high-stakes choice between two very different paths to U.S. permanent residence. While the Gold Card promises speed and simplicity, the long-standing EB-5 Immigrant Investor Program—especially Rural EB-5—continues to offer stronger legal protection, lower overall cost for families, and the possibility of capital return.
The Trump Gold Card: Fast Processing, Permanent Cost:
The Gold Card allows wealthy individuals to obtain U.S. lawful permanent residence by making a non-refundable “gift” of $1 million to the U.S. government (plus a $15,000 processing fee). Family members are not included—each spouse or child requires a separate $1 million contribution.
Crucially, the Gold Card is not an investment. There is no job creation, no return of funds, and no statutory protection. The program exists solely by executive order and could be modified or terminated by a future administration.
Even more important: Gold Card green cards are issued under existing EB-1 or EB-2 categories, meaning applicants from India and China still face multi-year visa backlogs—often 3 to 12+ years—after approval. Many applicants may pay millions and still wait years abroad, with no work authorization and no way to recover their funds.
EB-5: A Congressional, Investment-Based Path:
By contrast, the EB-5 program—created by Congress and reformed in 2022—requires an $800,000 at-risk investment in a qualified rural or high-unemployment project. One investment covers the entire family (spouse and children under 21).
Most importantly, EB-5 funds are invested, not gifted. After the required investment period, investors may recover their capital, depending on project performance.
Why Rural EB-5 Stands Out in 2025
Rural EB-5 projects benefit from unique statutory advantages:
- Current priority dates for all countries, including India and China
- Priority processing at USCIS
- Concurrent filing (I-526E + I-485) for applicants already in the U.S., allowing early work permits and travel authorization
- Grandfathering protection for petitions filed by September 30, 2026, even if the program later sunsets
For investors from backlogged countries, this means no waiting years for a visa number, unlike the Gold Card route.
Cost Comparison (Family of Four)
- Gold Card: ~$4,060,000 (non-refundable gifts)
- Rural EB-5: ~$800,000 investment + filing fees, with potential capital return
The Bottom Line:
The Gold Card may appeal to ultra-high-net-worth individuals who prioritize speed over cost and are unconcerned about losing capital. However, for most families—especially those from India or China—the math, law, and risk analysis strongly favor Rural EB-5.
Rural EB-5 offers:
- Lower total cost
- Family inclusion at no extra investment
- Current visa availability
- Possible return of capital
- Congressional authorization and statutory protection
Choosing the right path is not about headlines—it’s about long-term security, legality, and value.
This article is for informational purposes only and does not constitute legal advice. Immigration laws and programs change frequently. Consult a qualified immigration attorney before making any investment or immigration decision.
January 2026 Visa Bulletin Update: USCIS Will Honor Dates for Filing for Employment-Based Categories
U.S. Citizenship and Immigration Services (USCIS) has announced that it will honor the Dates for Filing chart in the January 2026 Visa Bulletin for employment-based adjustment of status applications. This decision allows many foreign nationals to file Form I-485 earlier than they would be able to under the Final Action Dates chart.
The Dates for Filing chart, published monthly by the U.S. Department of State in the Visa Bulletin, determines when applicants may submit adjustment applications even if a green card number is not yet immediately available.
Employment-Based Dates for Filing – January 2026
To file an employment-based adjustment of status application in January 2026, applicants must have a priority date earlier than the dates below:
EB-1 (Priority Workers)
- China: August 1, 2023
- India: August 1, 2023
- All Other Countries: Current
EB-2 (Advanced Degree / Exceptional Ability)
- China: January 1, 2022
- India: December 1, 2013
- All Other Countries: October 15, 2024
EB-3 Professionals & Skilled Workers
- China: January 1, 2022
- India: August 15, 2014
- All Other Countries: July 1, 2023
EB-3 Other Workers
- China: October 1, 2019
- India: August 15, 2014
- All Other Countries: December 1, 2021
EB-4 (Including Certain Religious Workers)
- All Countries: March 15, 2021
EB-5 Immigrant Investors
- Unreserved (Regional Center & Direct):
- China: August 22, 2016
- India: May 1, 2024
- All Other Countries: Current
- Set-Asides (All Countries):
- Rural: Current
- High Unemployment: Current
- Infrastructure: Current
Why This Matters:
By honoring the Dates for Filing chart, USCIS enables eligible applicants—particularly those already in the United States—to:
- File Form I-485 sooner
- Apply for employment authorization (EAD) and advance parole
- Secure interim benefits while waiting for final visa availability
This is especially significant for EB-5 set-aside investors, as all three set-aside categories remain current for every country, continuing to offer one of the fastest employment-based pathways to permanent residence.+
Bottom Line:
The January 2026 Visa Bulletin brings meaningful filing opportunities for employment-based applicants, especially in EB-1, EB-2 (Rest of World), and EB-5 set-aside categories. Applicants should review their priority dates carefully and consult immigration counsel to determine eligibility to file in January.
Sincerely,
Keshab Raj Seadie, Esq.
Law Offices of Keshab Raj Seadie, P.C. Disclaimer: This newsletter is intended for informational purposes only and does not constitute legal advice. Always consult an attorney for personalized advice.
