H-1B Cap Season Start for FY 2026
With the new H-1B Cap season quickly approaching, it is time to start evaluating your H-1B needs and preparing for the annual H-1B lottery. Each year, the demand for H-1B visas far exceeds the available supply and since 2020, the government has been using a computerized lottery selection process to fill the yearly quota for H-1Bs. This year’s registration period should begin in early March for a minimum period of 14 days during which time all H-1B registrations for the upcoming lottery must be submitted. After the registration period closes, the government will complete a random lottery selection and employers whose registrations have been selected must file H-1B petitions within the government-designated filing window (which generally begins on April 1 and remains open for approximately 3 months). If all available H-1B visa numbers are not used by those chosen in the original lottery, then USCIS will conduct additional lotteries at later points, as needed, until all available H-1B visa numbers are exhausted.
While USCIS has not yet announced specific registration and filing dates for the upcoming lottery, with registration account creation usually opening in mid-February, employers should consult immigration counsel as soon as possible to plan upcoming H-1B petition submissions and related timelines.
New National Interest Waiver Guidance Issued by USCIS
USCIS has historically struggled to provide clear criteria for evaluating eligibility for national interest waiver (“NIW”) petitions. However, on January 15, 2025, USCIS published updated guidance to clarify its approach. This new policy guidance builds on a prior update addressing unique considerations for individuals with advanced degrees in science, technology, engineering, and mathematics (“STEM”) fields and entrepreneurs. The updated guidance aims to promote greater transparency, consistency and predictability in the NIW application process. By delineating key evaluation criteria, USCIS seeks to assist both applicants and adjudicators in understanding the requirements for securing a National Interest Waiver.
The updated guidance defines the following criteria:
1. Direct Connection Between Exceptional Ability and the Proposed Endeavor: The individual’s exceptional abilities must be directly tied to the proposed endeavor.
2. Advancement of the Proposed Endeavor Through Individual’s Qualifications: The individual’s skills, knowledge and expertise must advance the proposed work in the United States. A clear and demonstrable link between the individual’s qualifications and the proposed endeavor is required.
3. Alignment with National Importance: The proposed endeavor must align with elements of national importance to the United States. USCIS provides examples of what may constitute national importance while cautioning against vague claims of general economic benefit or job creation unsupported by concrete evidence.
4. Positioning to Advance the Endeavor: USCIS evaluates whether the individual is well-positioned to advance the specific endeavor. The guidance specifies the types of evidence that may be considered, including letters of support and detailed business plans.
DID YOU KNOW?
Munsch Hardt’s Immigration Practice Group successfully represented a preeminent Texas healthcare organization in its response to a complex government inquiry into the extraordinary ability of its leading expert in pediatric cardiology research. Our legal team has extensive experience in handling complex Requests for Evidence to ensure our clients have access to top talent worldwide.