Unpacking Recent H-1B Changes

The $100,000 Fee: On September 19^th, President Trump announced a new $100,000 annual fee for H-1B visa applications. While the proclamation, published on a Friday evening and confusingly worded, caused immediate panic among immigration experts, employers and H-1B holders, the administration has since issued further clarification stating that the $100k fee will apply only to new H-1B petitions filed after September 21, 2025, on behalf of individuals outside of the United States and not currently on an H-1B visa. Nevertheless, the dramatic cost increase to employers is expected to make hiring through the H-1B program prohibitively expensive for many employers, with an outsized impact on startups and smaller companies.

 

Proposed Wage-Based Lottery System: The administration is also proposing to replace the current H-1B lottery system, which is based on a random draw, with a new weighted system which would allot entries in the lottery according to the wage level of the offered position. This change, if adopted, will very likely heavily tip the scale in favor of individuals in highly paid, senior roles and make it even harder for entry-level and mid-career professions, especially recent university graduates, to obtain an H-1B visa.

 

Higher Prevailing Wage Requirements: Although the headlines have been dominated by discussion of the $100k H-1B filing fee and the weighted lottery proposal, a third prong to the proposed changes has received relatively little attention. Reviving an initiative from Trump’s first administration, the September 19 Proclamation also instructs the Department of Labor to revise and raise prevailing wage levels “in order to upskill the H-1B program and ensure that it is used to hire only the best of the best temporary foreign workers.”

 

If we take the October 2020 rule proposal as a blueprint for what to expect in a new proposal, we can expect these changes to further “pull up the ladder” on entry level and mid-career positions:

 

• Level I (Entry): Increase minimum salary to meet this level from the 17^th percentile to the 45^th percentile.
• Level II (Qualified): Increase minimum salary to meet this level from the 34^th percentile to the 62^nd percentile.
• Level III (Experienced): Increase minimum salary to meet this level from the 50^th percentile to 78^th percentile.
• Level IV (Fully Competent): Increase minimum salary to meet this level from the 67^th percentile to the 95^th percentile.

To put this into perspective, imagine a software engineer position in Silicon Valley which would have qualified for an entry in the H-1B lottery at wage level I with an annual salary of $145,000 in the current random selection system. If the Department of Labor implements the above changes alongside the weighted lottery proposal, the same role would require an offered wage of $180,000 or more just to qualify for the lottery at the lowest chance of selection, before even considering the potential applicability of a $100,000 fee.

 

Taken together with the wage-based weighted lottery, this change would further compound the disadvantages for hiring at the lower two wage levels.

 

Layoffs

To make matters more complicated, not only are there significant changes coming to the H-1B program, a number of key H-1B employers have carried out large-scale layoffs. For H-1B workers, being laid off triggers a 60 day grace period during which the visa holder must find a new sponsoring employer, or change to a different status. 

 

Understanding the Ins and Outs of the O-1A 

 

Key Advantages of O-1A Over H-1B

While O-1A sets a high bar for applicants to qualify, there are a few key aspects of the O-1A visa category that make it particularly advantageous when compared to H-1B.

 

No Lottery or Annual Cap: Unlike H-1B’s 85,000 annual cap and lottery system, O-1A has no numerical limits. You can apply at any time during the year, without worrying about lottery odds or whether a $100,000 fee may apply to your petition.

 

No Minimum Wage Requirements: O-1A is not subject to H-1B’s strict prevailing wage requirements. While commanding a significantly high salary in comparison to others can be used as one of the three required criteria for O-1A, it’s not a hard requirement. This offers much more flexibility especially for startups and companies operating on limited budgets.

Unlimited Extensions: While H-1B is limited to six years total (with some exceptions), O-1A status is initially granted for a period of up to three years and can be extended indefinitely in 1-year increments, as long as you continue working in your field of extraordinary ability.

 

Flexibility, Particularly for Entrepreneurs: O-1A allows for more creative sponsorship arrangements, including agent petitioners who can represent multiple employers or projects, meaning that individuals on O-1A status can work for multiple employers so long as they have been included in their O-1A petition. This aspect of O-1A makes it more viable for founders and freelancers compared to H-1B’s rigid employer-employee requirement.

 

O-1A as a Steppingstone to Permanent Residency: O-1A is considered a “dual intent” visa category, meaning that O-1A status holders are allowed to pursue a green card without jeopardizing their non-immigrant status. O-1A holders frequently have a head start on qualifying for EB-1A or EB-2, which have shared criteria.

 

O-1A’s Drawbacks

There are also a few drawbacks to O-1A that are worth keeping in mind.

 

No Work Authorization for Spouses: One of the most significant downsides of O-1A is that the spouse of an O-1A status holder, who is on an O-3 visa, is not eligible for work authorization in the U.S. This can present a major challenge for families who rely on two incomes. While a spouse on an O-3 visa may study while in the U.S., they must seek out a different visa should they plan to work. In contrast, spouses of H-1B visa holders on an H-4 visa may be eligible to apply for a work permit if the H-1B visa holder has an approved I-140.

No Grace Period: Another significant limitation of O-1A is that there is no grace period. Once your contract with your employer expires (unless you have another O-1 visa from another employer), you must immediately depart from the United States.

 

What about International Students? Is O-1A a Viable Alternative to H-1B?

 

The H-1B has long been the ultimate goal for many international students as a way to join the US workforce and continue their stay in the United States. Just as the O-1A holds value for those previously in H-1B status, it is similarly a viable, and perhaps one of the few remaining options for F-1 holders to consider. 

 

While an opportunity for graduating international students to avoid the diminishing odds of the H-1B lottery, interested students will need to start building their resumes earlier on during their studies to demonstrate that they meet the high threshold for O-1A status.

 

Direct Transition from F-1/OPT/STEM OPT to O-1A is Possible: International students can transition directly from F-1 status (including OPT/STEM OPT) to O-1A status through a change of status application. You don’t need to leave the U.S. as long as your file before your F-1/OPT expires. Although standard processing can take around 5-7 months (you can check the latest processing time on USCIS’s website), 15 business day premium processing is available for a $2,805 fee.

 

Strategic Considerations for International Students

If you’re an international student considering O-1A, you should aim to make the very most of your time under F-1 status to participate in research, publish papers, speak at conferences and compete for awards, which can help you to demonstrate O-1A eligibility. You’ll also want to use your OPT period strategically to continue to build your qualifications, including publications, awards, media coverage and things like incorporating your business if you’re aiming for applying as an entrepreneur.

 

Keep in mind that O-1A requires either a U.S. employer or agent sponsor: you cannot (directly) self-petition, and you need to demonstrate that you’ll continue to work in your field of extraordinary ability. You’ll also need to source an advisory opinion from a peer group or, more frequently with business-focused petitioners, an expert in your field.

 

Finally, for those students or trainees on J-1 visas instead of F-1s: if you’re subject to the 2-year home residency requirement (e.g., you don’t have a J-1 waiver), you will only be able to apply for an O-1A through a consular post abroad.

Key Takeaways

While not a done deal, the writing is on the wall: the proposed changes to the H-1B lottery system and petition costs will transform the program from a random lottery in which all specialty occupation workers faced equally difficult odds into a pay-to-play system favoring highly paid, senior foreign talent.

 

In this likely scenario, coupled with continuing layoff announcements, the O-1A visa will gain traction as a more viable option for highly skilled and acclaimed foreign nationals. As applications increase, it will likely lead to longer processing times and could have implications for adjudication standards. As applicants consider the O-1, they should take timing into account and be aware of the complexity of the application and the necessary evidence to demonstrate extraordinary ability to USCIS.