On March 31^st, USCIS announced that it had met the annual quota of 85,000 H-1B cap-subject beneficiaries in the pre-registration lottery filing period between March 4^th and March 19^th, 2026.  If one was selected in the H-1B lottery, a U.S. employer may file the H-1B petition for the foreign national in the statutory filing period between April 1^st and June 30, 2026.

Several new factors will be considered in submissions for this year, including the wage-weighted assessment previously discussed in our Alert here New H-1B Form Effective April 1 and Its Impact on Filings and Wage-Based Selection Criteria  , and confirming and evidencing that the H-1B prospective employee will have complied with the terms of their visa to qualify for a change of status, effective October 1^st.

Further, an assessment of whether a foreign beneficiary qualifies for H-1B ‘cap-gap’ consideration should also be factored into the filing. Finally, whether the $100,000.00 filing fee is to be paid by the U.S. employer for specific individuals located abroad will also give many employers pause in filing H-1B petitions for foreign nationals. The $100,000 fee remains in effect until federal court challenges have been resolved.

For last year’s H-1B visa cap season, USCIS conducted one lottery selection, whereas in fiscal years 2025 and 2024, USCIS conducted two lottery selections and therefore conducted two separate 90-day H-1B filing periods. It is not known whether or how the new wage-weighted lottery selection process and new $100,00 fee for H-1B consular notification petitions might impact the number of H-1B petitions which will be filed in the April 1 to June 30 filing period, and therefore whether a second selection is likely.

Travel While H-1b Petition Pending

For foreign students in F-1 Optional Training or F-1 Curricular Practical training status who benefit from the filing of an H-1B petition on their behalf, permission to work is automatically extended and effective until October 1^st, 2026. The H-1B petition would be granted or pending and consultation with a prospective employer and a designated school official is advised to assess that one is maintaining valid status, secures employment authorization endorsement and may remain in the United States until petition approval. 

International travel is not advised despite possession of a valid F-1 visa stamp, valid employment authorization card and valid I-20 and I94. Travel can disrupt maintenance of status and remove the ability for uninterrupted employment while the H-1B is pending, approved as of the effective date of October 1^st, and more.  It is advisable to contact U.S. employers and their counsel to assess any urgent travel needs and whether return to the United States is possible prior to October 1^st.

Other Visa Options 

For foreign nationals not selected in the H-1B visa lottery this year, other visa alternatives remain available for consideration, including the TN NAFTA visa for Mexicans and Canadians, the H1B1 for nationals of Singapore and Chile; the E3 visa for Australians; the E visa for nationals of countries sharing a Treaty of Trade and Commerce with the United States; and the O visa for those considered extraordinary in their fields of endeavor.

Achievement and accomplishment for the O visa may be obtained at any age – so consideration to this visa category is not to be dismissed out of hand, especially in the STEM fields.  Others might secure employment for non-cap subject H-1B entities, including universities and institutions of research. 

All is not lost! Some foreign nationals may have employers willing to post them to affiliate entities overseas in qualifying capacities to facilitate their return to the United States after one full year of employment abroad in L-1 visa status.

Final Thoughts

It is recommended that if your company has individuals not selected in this year’s H-1B lottery pre-registration period, that you  consult with our Tarter Krinsky & Drogin team to assess whether other visa options might be available for consideration to establish a path forward for talented foreign nationals who you envision may contribute to your company and our country as a whole.