H-1B Cap Season Debrief: Selection Rates, Rule Changes, and Backup Plans

Announcer: Welcome to the Ogletree Deakins Podcast, where we provide listeners with brief discussions about important workplace legal issues. Our podcasts are for informational purposes only and should not be construed as legal advice. You can subscribe through your favorite podcast service. Please consider rating this podcast so we can get your feedback and improve our programs. Please enjoy the podcast.

Meagan Dziura: Another H-1B season is in the books, selection rates ticked up, the number of multiple registrations plunged, and we might be staring down a new wage-weighted selection rule. If your employees weren’t picked, don’t panic. We’ll be talking today about what the data says and what to do next. I’m Meagan Dziura, of counsel in the Raleigh, North Carolina, Ogletree Deakins office, and I’m here with Awanti, also in the Raleigh North Carolina office. Hi, Awanti.

Awanti Damle Sharda: Hi, Meagan. Thanks so much. I’m so glad to be here, and let’s get into it.

Meagan Dziura: Awesome. So, let’s look at the numbers first. USCIS selected 336,153 unique beneficiaries and issued 120,141 selection notices. This resulted in a selection rate of approximately 35%. This is about a 5% increase from last year. So, there are other factors to look at too. The multiple registration beneficiaries, this was only 7,828, and this is dramatically down from 47,314. The registration window ran from March 7th through 24, and USCIS announced the fiscal year 2026 cap was reached on July 18th, 2025. So, USCIS introduced a beneficiary centric selection rule previously and put in integrity measures that they said would have more scrutiny, so they would be checking for fraud, and it would reduce the incidences of beneficiaries being selected more than once, because they were choosing beneficiaries based on their passport instead of just choosing a registration at random. So, that could be why we saw decreases, definitely why, we saw decreases in the multiple registration for beneficiaries. And then the decrease also could have been due to the registration fee increase. It was $10 last year and this year it was $215. So, some companies may have found that burdensome if they were trying to register a lot of beneficiaries.

Awanti Damle Sharda: Yes, Meagan, thank you much for that. Great recap in the numbers. This year was fewer entries, fewer duplicates, modestly better odds overall. That was a good recap of this past H-1B season and what we saw as a result. Now, for those who weren’t selected, we’re just going to run through some practical options for especially those who are currently in the U.S. looking for what that next backup option could potentially be for you. These options do include students who are currently here in the U.S. working pursuant to OPT if you are eligible for an O-1 visa category. There are two different categories within the O-1, the O-1A or the O-1B. There are also nationality specific visa categories as well, like the TN, E-3 or the H-1B1. And then there’s also the possibility of relocating abroad and coming back on an L-1 or intercompany visa option.

So, Meagan and I will now run through, just hit on some highlights on some of these categories. So, starting with students, which I know may apply to many employees working at your companies. So, there are two options. If you are currently in the U.S. and you’ve just recently graduated from your university program, every F-1 student does have a full 12 months of Optional Practical Training or OPT. This does follow immediately after graduation. If you have a degree that is in a science, technology, engineering, or math discipline, then you could be also eligible for an additional two years of that OPT authorization, which is what we refer to as the STEM EAD extension. It gives you a full actual three years of work authorization once you graduate from that university program. In order to get that STEM extension, you must have that STEM degree, like I just mentioned, and you must also timely file for that employment authorization extension before your initial 12 months of OPT expires. When you’re applying for that STEM EAD card, there is premium processing available for that. So, that is something that you could opt for if you’re looking to expedite getting that EAD card in hand. Otherwise, you will be in 180-day automatic extension of your employment authorization while you’re waiting for that STEM EAD to be approved.

Meagan Dziura: And for those who have maybe Ph.Ds., the top tier talent, there is an option of an O-1A or B visa. And the O-1 is really reserved for people who are of outstanding ability. So, this is usually for people who have say founded companies. It’s a small percentage and should really be used for established professionals, or it could be used for people who may have a Ph.D., lots of publications, people who are really at the top of their industry.
It’s a much more burdensome application than the H-1B, and it does leave a lot of discretion up to the reviewing officer. So, this really is for the top-tier talent and typically would not be available to every beneficiary that had entered the H-1B lottery.

Awanti Damle Sharda: A next common backup option is one that is nationality-specific. This is the TN visa. This is a visa category that was born out of a treaty agreement. So, the next couple of visa options are nationality-specific because they were born from treaties with the U.S. So, the first one for the TN is really designed for nationals of Canada or Mexican citizens. Now, depending on where you’re from, you can either apply directly with USCIS if you’re physically in the U.S. or at the consulate depending on where you are from. Canadian citizens, you can actually just apply for this directly at the port of entry. So, you don’t need to go to a consulate for that. This can be applied for directly upon entering the U.S. with the proper documentation. Or if you’re physically in the U.S., then that can also be applied for directly with USCIS with a petition filing. Now, if you’re a Mexican citizen, then you actually have to file for this at the consulate if you’re physically outside of the U.S. Otherwise, if you’re in the U.S., this can also be done with a petition filing directly with USCIS. Now, one caveat with the TN is you must be eligible for a specific profession or occupation that is within the designated list of occupations for TN qualification. So, there’s a really specific list of these professions. So, what we do to assess on whether you are eligible for this category is making sure that you meet the specific academic requirements that go along with that specific profession, and also making sure that the proposed duties for your role in the U.S. fall into one of these designated occupations.

Meagan Dziura: And something also to note about the TN is we have been seeing more scrutiny with the TN lately, and we have seen the definitions for these professions get narrowed a little bit. So, previously, I think the TN had a reputation of any profession can be fit into these categories. We are just seeing some more scrutiny both at the consulate and then at the border for Canadians. So, that’s something keep in mind.

Awanti Damle Sharda: Yeah, that’s a great point. And actually, I’ll also add on the TNs that this type of TN, this visa category also does not carry what we call dual intent. So, if you are looking to make sure that your employees are here on a more long-term basis, meaning you are invested in their stay in the U.S., and you’re looking to start a green card, you want to keep that in mind because the TN is purely a temporary nature type of stay in the U.S. So, for long-term employment options, you may want to consider them continuing to be entered into the H-1B lottery, but it still serves as a good backup option for those who have not been selected.

Meagan Dziura: Yeah, absolutely. Australian citizens, the E-3 is available. It’s really similar to the H-1B in that it still requires a prevailing wage. It still has to be in a specialty occupation. This one can actually be filed either with USCIS or with the consulate if the employee is abroad. This gives employees a two-year admission period and there’s no limit to how many extensions they can do. So that’s another option. But again, it’s only limited to Australians. So, another option for citizens of Chile and Singapore, there is an H-1B1. This is similar to the E-3 in that it’s the same requirements as the H-1B. It can be filed with USCIS or the consulate. This actually only provides a one-year admission period if applying with USCIS. If someone is applying at the consulate, they do get 18 months.

Awanti Damle Sharda: Another common option that we see employers take for their employees who have not been selected in the lottery is to transfer to an entity abroad from outside of the U.S. The reason why many employers may do that is because after working abroad for at least one full year at an affiliated entity to the U.S. employer, they become eligible for an intercompany transfer visa category, which is the L-1. Now, within the L-1, there’s two different types that an employee could qualify for. The first one is the L-1B, which is designated for those who are working in a more of an individual capacity and they’re gaining a specialized knowledge skillset. So, they are holding an experience that is really unique to that company and can only be gained while working abroad. So, that’s the L-1B category. And once they’re admitted into the U.S. in this visa type, they have a max of five years in the U.S. on an L-1B. The other type is the L-1A category, and that’s designated for employees who have served in a managerial capacity abroad and will continue to serve in a managerial role in the U.S., as well. So, unlike the L-1B, the L-1A has a maximum of seven years in the U.S. once they enter.
So, they have a little bit of differences there, but depending on what the experience is abroad, that can be assessed for whether they meet the requirements for either an L-1B or an L-1A. Now, just because they have worked abroad for just that one year of employment, so say they need that backup option and you have decided to transfer that and employee abroad to gain that one full year, there’s no guarantee that that L-1 will be approved after satisfying that one year of employment. This is something that still needs to be discussed internally with management to ensure that the employee has an approvable case in either the L-1B or the L-1A managerial category. And this needs to be discussed internally to make sure that the company will ultimately support and has an assignment for a U.S. transfer after that one year.

Meagan Dziura: Why don’t we talk about now looking forward, what might change next year?

Awanti Damle Sharda: Yeah, that’s a great question. We’re already around that time of year where we’re starting to look ahead and we’re working with our clients and employers on figuring out, putting together lists. And for the upcoming H-1B cap season, again, I can’t believe we’re already saying that considering we are talking about how the last one just ended, but some updates that we might expect for next year are a change to the actual H-1B lottery system. There has been a little bit of movement and talk about a new weighted selection-based H-1B system. So, this means that the Department of Homeland Security is now considering a change in the way that the H-1B system is run. So rather than it being a randomized selection, completely random, regardless of what the position details are, they might be considering what they called a wage-based selection rule. So, what that means is the government may start to prioritize those positions that are offering higher wages rather than positions that have the lower wages. So, the way that the government-based wages are run, it’s a leveling system from level one to four. So, they are looking at positions that are categorized at those higher level three, level four wages rather than some of the wages that are more entry level or mid-level roles that might be categorized as a level one or two.
Now, this has not been implemented. It is still actively in the review phase, and it’s still unlikely or we still don’t have a good indication of whether this is going to pass before next year’s cap, but there’s a chance that it could. So that’s why we’re talking about it now and making sure that employers and our clients are aware of this possibility. And just to give everyone more context here, this rule was actually originally proposed during Trump’s first administration back in 2021.
It never moved forward at that time, but now during his second term here, the proposal has been revived and it’s still undergoing review. It hasn’t been released for public yet for review and comment. So, definitely stay tuned for further updates on this and what we could see changing in the next year.

Meagan Dziura: So do we think, or I would imagine that employers may look at this and think, oh, I need to change the way I’m planning for next year’s cap just in case. What do we see employers doing already about this?

Awanti Damle Sharda: Yeah, that’s a great question. And especially for those employers who tend to really be supportive of their employees into the H-1B lottery, a lot of these employers are already starting to assess which individuals they typically do put into the H-1B lottery and taking a closer look at some of those positions that are more entry level and mid-level that may not be categorized in that level three or level of four wages. Making sure that they’re aware of who those individuals are and identifying whether they need to have a firm contingency plan in the event that this system actually goes into effect, because the effect of the system will impact those positions that have lower wages. Now, the full extent of this impact is still yet to be seen because we don’t really know how the system is going to be implemented yet since nothing’s been released. But just overall what we know so far, it will impact how selections are made just based on the wages. So, if you have more entry level registrations that are being submitted, they are less likely now under this new proposal to be selected.

Meagan Dziura: In addition to looking at those potential entry level roles that may be going into the cap, we also would recommend that employers start looking at timing for any of their employees that are on F-1. So Awanti covered STEM OPT in the beginning, but it’s really important to look at when your employees’ EAD cards are expiring for STEM, making sure that they have enough time to go into this next cap. There is a provision that allows for what’s called cap gap coverage, meaning that if the cap case is filed prior to the F-1’s work authorization ending, they do automatically get a what’s called cap gap. They get work authorization until that September 30th date, since October 1st is the first day that any cap petition would start. So, looking at that, making sure that people would be eligible for that cap gap. Their employment authorization goes all the way up to until we are able to file cap petitions and making all of those expectations clear to any students. This would also pertain to employees that are on different visas. So, like Awanti mentioned, if someone’s on say an O-1 or a TN visas that may not be dual intent and the employer does want to consider an employee for a green card, they may still be putting them into the H-1B cap. Making sure that anyone’s work authorization would be covered in the event that they aren’t selected in the H-1B cap, or if they are selected, making sure the work authorization goes up until that October 1st date and planning for any extensions that someone may need. With all of this, we also see employers looking at communication planning. So, this could be internal FAQs for managers of employees that need to go in the cap.
This could be for HR business partners who might be selecting people that need to go in the cap. Making sure that everyone is aware of timelines and deadlines because nobody wants to be rushing right before the registration date and finalizing their cap lists. We definitely always see employers trying to get ahead of that and starting planning basically now for next year.
And we already talked about what could look different if a wage weighted selection rule actually goes into effect. So, that’s also something that employers should definitely be looking at. Look for any updates on this proposed H-1B wage rule on the Ogletree Deakins website as we are tracking it and would be updating anything that we hear there. And then definitely tune into future immigration focused podcasts. Thanks, Awanti, for being here.

Awanti Damle Sharda: Thanks, Meagan. Hope you all enjoyed.

Meagan Dziura: Hi, I’m jumping back on here after our H-1B post-lottery podcast was recorded just with an update that DHS did publish the proposed rule to modify the way H-1B registrations are selected for cap subject petitions. They did publish this on September 24th, 2025, and it does seek to replace the current random selection process with a weighted wage-based selection process. And this process will favor higher skilled and higher paid workers. It aims to prioritize H-1B selections for higher paying positions by requiring the wage information during the registration process. So, previously, the registration process documentation was really limited to a passport and brief information about the foreign national. It sounds like now it will require that prevailing wage information during the registration, and the weighted selection process will assign more entries to higher wage levels. So, this will increase the chances for higher paid foreign workers but will still allow the possibility of selection at all wage levels. Essentially entry level workers with less experience and lower wage level positions, they’re not excluded altogether, but the chances of selection can be greatly reduced compared to those four nationals that are making higher wages. And the employers will be required to provide that accurate wage data and job information as part of the registration. So, like I said, this is probably comparable to the details you would need in an LCA, essentially. Similar to when a proposed rule to change the lottery process came out in November 2020, this new rule will likely face court challenges. So, we’ll be monitoring that and as well as updates to the proposed rule, and we’ll post those updates on the immigration blog as additional information becomes available.

Announcer: Thank you for joining us on the Ogletree Deakins Podcast. You can subscribe to our podcast on Apple Podcasts or through your favorite podcast service. Please consider rating and reviewing so that we may continue to provide the content that covers your needs. And remember, the information in this podcast is for informational purposes only and is not to be construed as legal advice.