Tougher H-1B Visa Scrutiny Anticipated as Annual Lottery Opens

US businesses looking to add high-skilled foreign talent on H-1Bs face the potential for stringent scrutiny from the Trump administration if they come out on top of the annual lottery for the specialty occupation visas.

Employers can register workers starting Friday for the chance to apply for one of 85,000 new visas, which are most heavily used in the technology industry. It’s the first selection process since US Citizenship and Immigration Services hiked registration costs to $215.

But immigration attorneys don’t expect a significant slowdown in interest because of the higher cost of entry. The bigger question for many is how hard getting visa approvals will be after the lottery.

“The reality is that even small employers rely on the H-1B for their talent pipeline. I don’t think the fee increase is going to change that model,” said Isha Atassi, a partner at Fragomen, Del Rey, Bernsen & Loewy LLP. “We certainly expect higher levels of scrutiny on petitions for those that are lucky enough to be selected.”

Tougher Vetting

The H-1B program has been a subject of infighting within Trump administration circles. While White House adviser Elon Musk has defended the need for the program, figures like Steve Bannon have attacked it for undermining US workers. In the first administration, rejection rates jumped and approval of new visas slowed thanks to a deluge of requests for evidence to support information in visa petitions.

Many expect similar hurdles this time around. That’s thanks in part to new H-1B regulations finalized by the Biden administration last year that require a worker’s degree be directly tied to their role.

“The actual adjudication of H-1B petitions once the registrations are selected in the lottery, I think is going to go very slowly,” said Angelo Paparelli, a partner at Vialto Law (US) PLLC.

The main immigration focus in the early weeks of Trump’s second term has been detaining unauthorized immigrants and ramping up deportation rates. How USCIS handles H-1B petitions after the upcoming lottery will offer a strong indicator of its workplace enforcement agenda, attorneys said. Many are preparing now by anticipating potential information requests when they craft visa petitions.

“Immigration attorneys and clients right now are kind of on edge waiting to see how the dust is going to settle,” said Anna Gorisch, managing partner at Kendall Immigration Law PLLC.

Fee Hikes

USCIS last year finalized new fees on a slate of immigration benefits for the first time since 2016. The fee-funded agency said adjusting user fees was long overdue to help pay for the costs of adjudicating immigration benefits.

Since the online registration system for the H-1B lottery was launched in 2020, employers only had to pay $10 to register each worker. That was a negligible cost that did little to discourage the growth in registrations, Gorisch said.

“It’s a ‘why not’ at $10,” she said.

The top H-1B employer in fiscal year 2024, Amazon.com Inc., got approval for more than 3,800 new visa petitions that year. A $205 increase may appear steep, but it’s still a fraction of the costs of an H-1B worker’s salary, and even pales in comparison to recruiting costs, said Xiao Wang, CEO at Boundless Immigration.

“If a company needs the foreign talent, they’re still willing to pay,” he said.

Employers’ demand on the program would likely only change, Wang said, if the government mandated significantly higher prevailing wage levels for entry-level workers, which are determined by their role and the region where they are based. The first Trump administration attempted to raise wage rates for the visa program before it was blocked by litigation.

This year’s lottery will also be the second selection process since a USCIS revamp to weed out duplicate registrations. The agency made that change after finding rapid year-on-year growth in registrations was driven by employers gaming the system with entries that didn’t represent legitimate job opportunities. The number of duplicate entries plummeted last year after that overhaul to the process, suggesting the change was already having an effect.

For many H-1B hopefuls and employers, that adds credibility to the system and mitigates concerns of fraud and abuse, Fragomen’s Atassi said. However, she added the final selection rate—29% last year compared to 24.8% the year before—indicated that the annual quota is still “woefully insufficient” to meet talent needs.