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Preparing for the H-1B FY 2026 Filings and Summary of the H-1B Modernization Rule

The U.S. Citizenship and Immigration Services (USCIS) has recently announced certain modernization rules to the H-1B program. A summary of these is provided below in this article. However, what needs immediate attention is preparing for the FY2026 H-1B cap season.

The immediate changes that affect the FY2026 H-1B petitions include an increase in the H-1B registration fee and the requirement to use a revised Form I-129 for filing petitions.  

Increased H-1B Registration Fee

For FY2026, the H-1B registration fee has risen to $215 per applicant. This fee is required for participation in the electronic registration process and remains non-refundable, regardless of whether the registration is selected in the lottery. Previously, the fee was just $10. The increase is part of USCIS’s effort to cover administrative and operational costs.

Mandatory Use of Updated Form I-129

USCIS has introduced a revised version of Form I-129, which is required for H-1B petition filings. Employers must use the most current version of this form when submitting their petitions to avoid processing delays or potential rejections.

Expected Timeline for the FY 2026 H-1B Lottery Process

While USCIS will release official dates closer to the registration period, the anticipated timeline based on past years is as follows:

  • March 1, 2025: The H-1B registration period opens. Employers must create an online USCIS account and submit registrations.
  • March 20, 2025: The registration window closes. All registrations must be submitted by this deadline.
  • Late March 2025: USCIS will conduct the lottery and notify selected registrants.
  • April 1, 2025: The filing period for H-1B petitions opens. Selected applicants will have 90 days to submit complete petitions with supporting documents.
  • June 30, 2025: Deadline for submitting H-1B petitions under the regular cap.

Employers and foreign workers should prepare in advance to ensure compliance with the latest USCIS requirements and avoid delays.  

To Register the potential H-1B workers you will need the following:

Summary of the H-1B Modernization Rule

Redefining ‘Specialty Occupation’

A pivotal change in the final rule is the updated definition of a “specialty occupation.” Previously, to qualify for an H-1B visa, a position typically required a bachelor’s degree in a specific field. The new rule clarifies that while a bachelor’s degree should be directly related to the duties of the position, a position is not a specialty occupation if a general degree, without further specialization, is sufficient to qualify for the position. A position may allow for a range of fields, provided that each of these is directly related (that there is a logic) to the duties of the position.

Enhanced Enforcement and Compliance Measures

To uphold the integrity of the H-1B program, DHS has strengthened its enforcement protocols. The U.S. Citizenship and Immigration Services’ (USCIS) Fraud Detection and National Security (FDNS) unit is now empowered to conduct more rigorous worksite inspections. These visits can occur at any location where the H-1B employee works, has worked, or will work, including third-party sites.  Employers who refuse to comply with these site visits may face denial or revocation of their H-1B petitions. This heightened scrutiny underscores the importance for employers to maintain meticulous records, have a responsible person at the physical worksite to answer at least preliminary questions, and ensure full compliance with H-1B regulations.

Codification of Deference Policy

The final rule codifies a deference policy that had been rescinded during the first Trump administration. Under this policy, the USCIS officers are instructed to give deference to prior Form I-129 approvals when adjudicating extension requests, provided there has been no material change in circumstances or eligibility requirements, no material error in the prior approval, and no new material adverse information. This codification aims to offer employers greater predictability and stability during the H-1B extension process. However, deference to prior approvals involving the same parties and the same underlying facts does not mean that the USCIS will not review the new petition. Petitioners continue to have the burden to present all required and relevant evidence to establish eligibility for the requested classification. The USCIS is not bound to approve subsequent petitions where eligibility has not been demonstrated strictly because of a prior approval, and the USCIS will continue to decide each matter according to the evidence of record on a case-by-case basis. 

Maintenance of Status

The new rule codified that, when seeking an extension or amendment of stay for an H-1B worker, the petitioner must submit supporting evidence to establish that the beneficiary maintained the previously accorded non-immigrant status before the extension or amendment petition was filed.  Applicants seeking H-4 extensions must also submit supporting evidence to establish that he/she maintained the previous non-immigrant status before an extension application is filed. 

Increased Opportunities for Entrepreneurs

The updated rule provides enhanced flexibility for foreign entrepreneurs seeking to establish and grow start-ups in the U.S. Notably, individuals with a controlling interest in a U.S. company may now be eligible for H-1B status, provided they meet all other H-1B requirements and will spend the majority of their time performing duties that qualify as a specialty occupation. This change opens new avenues for entrepreneurs across various sectors to obtain U.S. work authorization, fostering innovation and economic growth.

It is important to note that if the H-1B beneficiary possesses a controlling interest in the petitioner, meaning the beneficiary owns more than 50 percent equity of the petitioner or has majority voting rights in the petitioner, such a beneficiary may perform duties that are directly related to owning and directing the petitioner’s business as long as the beneficiary will perform specialty occupation duties a majority of the time, consistent with the terms of the H-1B petition.

Clarification of Bona Fide Employment

The final rule reaffirmed, to establish a bona fide employer-employee relationship. The H-1B program requires employers to demonstrate a genuine job offer to the sponsored employee. While the USCIS may still request contracts or other related evidence, the new rule clarifies that formal itineraries are no longer required to substantiate a bona fide job offer. The USCIS will not require or request such documentation in a majority of cases. It acknowledged that contracts do not always contain minimum educational requirements and will therefore not always be probative evidence for purposes of determining that a position is a specialty occupation.

Extended Protections for F-1 Students

The final rule introduces significant benefits for F-1 students transitioning to H-1B status. Students who have timely filed an H-1B change of status petition can now benefit from extended “cap-gap” protections, ensuring continued work authorization while their application is pending with the USCIS. The “cap-gap” automatic extension applies to F-1 students working for employers who are petitioning for a change in status to H-1B. F-1 students typically work with employment authorization granted under Optional Practical Training (OPT). Their employment authorization may expire prior to the start of the fiscal year (October 1), leading to a gap in status. The automatic extension (known as “cap gap”) previously granted extensions through September 30, the last day before the start of the fiscal year. Now, eligible students may receive an automatic extension through April 1 of the fiscal year. This provision offers greater continuity for both students and employers.

Anticipated Impacts Under the Second Trump Administration

With the commencement of President Donald Trump’s second term, employers should brace for intensified enforcement of immigration policies. Anticipated measures include high-profile and high-volume enforcement actions, increased requests for additional evidence, and heightened scrutiny during adjudications. These changes may lead to higher costs, longer processing times, and greater challenges in securing work authorization for foreign nationals. Employers are advised to prepare for potential delays and backlogs in visa processing and to exercise caution when employees with H-1B status travel internationally.

Strategic Considerations for Employers

In light of these developments, employers should take proactive steps to navigate the evolving landscape of the H-1B program:

  1. Review and Update Compliance Protocols: Ensure that all H-1B-related documentation is thorough and up to date to withstand potential audits and site visits.
  2. Stay Informed: Regularly monitor DHS and USCIS announcements to remain abreast of policy changes and procedural updates.
  3. Engage Legal Expertise: Consult with immigration law specialists to effectively manage the complexities of H-1B petitions and compliance requirements.
  4. Assess Workforce Planning: Evaluate the potential impact of H-1B policy changes on staffing and consider alternative strategies for talent acquisition and retention.

By implementing these strategies, employers can better navigate the complexities of the H-1B program and continue to leverage the talents of foreign professionals in their workforce.

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The rules of the Bar Council of India do not permit advertisement or solicitation by Advocates in any form or manner.

This website lawquestinternational.com and the contents thereof are merely for informational purposes and not in the nature of solicitation or an advertisement. Similarly, any content posted by LawQuest on this website shall not be construed as legal advice. LawQuest takes no liability for consequences of any action taken by you relying on the content posted on this website.

By visiting this website, you confirm and acknowledge that you have voluntarily sought the information relating to and/or posted by LawQuest and there has been no solicitation/advertisement/inducement by either LawQuest and/or its members.