H-1B Visa Program Rules (as of January 2026)

The H-1B Modernization Final Rule is a final regulation issued by the U.S. Department of Homeland Security (DHS), published in the Federal Register on December 18, 2024, and effective January 17, 2025. Its full title is "Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers."

Though the H-1B Modernization Final Rule has not been directly amended, its impact has been modified by the following (“New Rules”):

1.      A separate final rule titled "Weighted Selection Process for Registrants and Petitioners Seeking To File Cap-Subject H-1B Petitions," which introduces wage-based weighting in the cap selection process (effective February 27, 2026, for FY 2027).

2.      A presidential proclamation imposing a $100,000 fee for certain new H-1B petitions (effective around September 21, 2025).

The H-1B Modernization Final Rule, when read with the New Rules, allows U.S. employers to temporarily employ foreign workers in specialty occupations. These occupations require the theoretical and practical application of a body of highly specialized knowledge and at least a bachelor's degree (or equivalent) in a specific specialty directly related to the position's duties.

Eligibility for Specialty Occupations

A position qualifies as a specialty occupation if it meets one or more of the following criteria:

• A bachelor's or higher degree (or equivalent) is normally the minimum entry requirement.
• The degree requirement is common in the industry for parallel positions.
• The employer normally requires a degree for the position.
• The duties are so specialized, complex, or unique that the required knowledge is normally associated with a bachelor's or higher degree.

Petitioners must demonstrate that the proffered position and the beneficiary's qualifications align with these standards. The Labor Condition Application (LCA) must correspond accurately to the petition.

Annual Numerical Limits (Cap)

The program is capped at 65,000 new visas per fiscal year (regular cap), plus an additional 20,000 for beneficiaries with a U.S. master's degree or higher (advanced degree exemption). Certain employers (e.g., institutions of higher education, nonprofit research organizations, and governmental research organizations) are exempt from the cap.

Registration and Selection Process for Cap-Subject Petitions

Employers intending to file cap-subject H-1B petitions must first submit an electronic registration for each beneficiary during the designated period. USCIS selects registrations based on a beneficiary-centric process, where each unique beneficiary has an equal chance of selection regardless of multiple registrations submitted on their behalf.

For FY 2026 and prior, selection is random among eligible unique beneficiaries. Starting with the FY 2027 cap season (effective February 27, 2026), USCIS will implement a weighted selection process favoring higher wage levels (based on prevailing wage data), increasing the likelihood of selection for higher-skilled and higher-paid positions while still allowing access at all wage levels.

Petition Requirements and Filing

Employers file Form I-129 (Petition for a Nonimmigrant Worker) with USCIS. The petition must include an approved LCA from the Department of Labor, certifying that the employer will pay the required wage and meet other labor conditions.

Additional requirements include:

• Establishing a bona fide employer-employee relationship.
• Demonstrating a legitimate specialty occupation position is available as of the requested start date.
• The petitioner must have a legal presence in the U.S. and be amenable to service of process.

USCIS may conduct site visits to verify compliance, with potential consequences for noncompliance.

Additional Fees and Conditions

New H-1B petitions filed on or after September 21, 2025, require a one-time $100,000 payment per petition as a condition of eligibility (with rare exceptions for national interest cases).

Duration and Extensions

Initial H-1B status is granted for up to 3 years, extendable in increments up to a total of 6 years. Extensions beyond 6 years are possible under certain AC21 provisions (e.g., pending permanent labor certification or immigrant petition).

Flexibilities and Protections

• Deference policy: USCIS generally defers to prior approvals for extensions involving the same parties and facts, unless material changes or errors exist.
• Cap-gap extension: F-1 students with pending or approved change-of-status to H-1B may remain authorized to stay and work until April 1 of the relevant fiscal year.
• Entrepreneurs with controlling ownership interest in the petitioning entity may qualify under certain conditions.
• Changes in worksite within the same area of employment do not require a new LCA or amended petition in many cases.