Year-End Immigration Alerts: H-1B Weighted Lottery Rule Issued, H-1B Fee Upheld, Travel Ban Expanded

In a flurry of immigration developments closing out 2025, US Citizenship and Immigration Services issued a weighted lottery rule for the H-1B lottery, the US District Court for the District of Columbia upheld the $100,000 H-1B fee, and the US administration’s travel ban will expand starting January 1, 2026.

US CITIZENSHIP AND IMMIGRATION SERVICES TO ISSUE WEIGHTED LOTTERY RULE

On December 29, 2025, US Citizenship and Immigration Services (USCIS) published a final rule, Weighted Selection Process for Registrants and Petitioners Seeking to File Cap Subject H-1B Petitions, that will replace the previous random lottery process for the selection of new H-1B visas with a system that accords greater weight and thus a higher chance of selection to beneficiaries with H-1B job offers at higher wage levels. The rule will take effect on February 27, 2026, in time for the H-1B lottery for Fiscal Year 2027 H-1B visas.

Under the new system, a lottery registration for a particular beneficiary may be entered into the lottery multiple times based on the highest Occupational Employment and Wage Statistics (OEWS) wage level in the area of intended employment for the Standard Occupational Classification (SOC) code appropriate for the position up to the point where the offered wage equals or exceeds that level. In other words, H-1B beneficiaries would be entered into the selection pool as follows based upon the classification of their offered wages:

• Wage Level IV: 4 times
• Wage Level III: 3 times
• Wage Level II: 2 times
• Wage Level I: 1 time

The weighted lottery rule will require additional information to be provided in the registration process, including the appropriate SOC code for the offered position, the area of intended employment, and the highest OEWS wage level that is met by the offered salary.

DC DISTRICT COURT JUDGE UPHOLDS H-1B 100K FEE

In a decision issued on December 23, 2025, US District Court for the District of Columbia Judge Beryl A. Howell upheld President Trump’s assessment of a $100,000 fee on certain H-1B beneficiaries—Proclamation No. 10973, Restriction on Entry of Certain Nonimmigrant Workers, 90 Fed. Reg. 46,027 (Sept. 19, 2025). The legality of the fee had been challenged by the US Chamber of Commerce. Judge Howell ruled that the Proclamation was lawful based upon the president’s "broad authority" to restrict noncitizens' entry.

In her decision, Judge Howell cited Section 212(f) of the Immigration and Nationality Act, codified at Section 1182(f) of Title 8 in the US Code, which states, in pertinent part, that whenever the president finds that the entry of noncitizens into the US would be detrimental to the United States' interests, the president "may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate." 

Currently, there are two other lawsuits challenging the Proclamation, one in the Northern District of California brought by Global Nurse Force and a coalition of unions and small businesses, and one brought by 20 states in federal district court in Massachusetts.

As we discussed in a prior LawFlash outlining the applicability of the $100,000 H-1B fee, the following H-1Bs are subject to the fee:

• New H-1B petitions filed at or after 12:01 am ET on September 21, 2025 for beneficiaries outside the United States who do not have a valid H-1B visa.
• H-1B petitions filed at or after 12:01 am ET on September 21, 2025 requesting consular notification, port of entry notification, or pre-flight inspection, including for an noncitizen in the United States.
• Petitions filed at or after 12:01 am ET on September 21, 2025 requesting change of status, amendment, or extension where the USCIS determines the noncitizen is ineligible (e.g., not in valid status or they depart the United States before adjudication or if the beneficiary departs the United States prior to adjudication of a change of status request). In such cases, the $100,000 fee applies and must be paid.

The following H-1Bs are exempt from the $100,000 fee:

• H-1B petitions received by the USCIS before 12:01 am ET September 21, 2025
• H-1B change of status, change of employer, extension, or amendment petition filed on behalf of a beneficiary who is in the United States in another valid nonimmigrant status, such as B, F, L, TN, etc.—and such amendment, extension, or change of status is granted
• A beneficiary of an approved H-1B petition who subsequently departs the United States and applies for a visa based on the approved H-1B petition
• A beneficiary who is outside the United States but holds a valid, unexpired H-1B visa at the time of the filing of another H-1B petition
• Beneficiaries granted National Interest Exceptions

IMMINENT EXPANSION OF THE TRAVEL BAN

On December 16, 2025, President Trump announced the expansion of the administration’s travel ban to include additional countries and the Palestinian Authority. The expansion will take effect on January 1, 2026.

The US administration implemented the travel ban in June 2025, imposing two types of visa restrictions on 19 countries in total. Nationals of Afghanistan, Burma, Chad, Republic of Congo, Equatorial Guinea, Eritrea, Haiti, Iran, Libya, Somalia, Sudan, and Yemen were subject to a ban on all nonimmigrant (temporary) visas and immigrant visas (permanent residence, or green cards.) Nationals of Burundi, Cuba, Laos, Sierra Leone, Togo, Turkmenistan, and Venezuela were subject to a ban on all immigrant visas and a slightly more limited ban on tourist, student, and exchange visitor visas.

Under the expansion to the travel ban set to take effect on January 1, 2026, there is a total ban on  nonimmigrant and immigrant visas for nationals of these additional countries: Burkina Faso, Laos, Mali, Niger, Sierra Leone, South Sudan, and Syria. Individuals with documents issued by the Palestinian Authority are also subject to the full ban.

Nationals of the following 19 countries are now banned from all immigrant visas and a more limited ban on non-immigrant visas, specifically all tourist, student, and exchange visitor visas (B-1, B-2, B-1/B-2, F, M, and J visas): Angola, Antigua and Barbuda, Benin, Burundi, Cote d’Ivoire, Cuba, Dominica, Gabon, the Gambia, Malawi, Mauritania, Nigeria, Senegal, Tanzania, Togo, Tonga, Venezuela, Zambia, and Zimbabwe.

Turkmenistan will now only be subject to a ban on immigrant visas, but not non-immigrant visas.

Exceptions

There were exceptions in the June ban for, among others, anyone with a current green card or a valid visa issued prior to the ban’s effective date; athletes, coaches, and their families attending the World Cup, Olympics, or other sporting events; people who are immediate relatives of a US citizen (spouses, children under the age of 21, and parents); children adopted abroad; and Afghans seeking Special Immigrant Visas for their work helping US armed forces.

In addition to the expansion of the ban to include additional countries effective January 1, the US administration also eliminated the following significant exceptions:

• Immediate relatives of US citizens
• Children adopted abroad
• Afghans seeking Special Immigrant Visas for their work assisting US armed forces

Note that a foreign national with dual citizenship of a country subject to the ban and a country not subject to the ban may travel to the US using a valid passport from the non-banned country.

While there is no immediate impact on nationals of the 39 countries now subject to the travel ban who are currently in the United States, in late November, the USCIS placed a blanket pause on the adjudication of all immigration benefits for nationals subject to the June travel ban.

This suspension applies to all benefits, including visa petitions, green card applications, and citizenship oath ceremonies. This suspension has now been extended to nationals of the newly banned countries. As a result, this means that there are now 39 countries whose nationals are currently unable to obtain immigration status and come to the United States from abroad, or obtain or change their immigration status from within the United States.

Currently, there is no information as to when adjudication of immigration benefits will resume for nationals of the countries subject to the ban.

HOW WE CAN HELP

Morgan Lewis will continue monitoring immigration developments into 2026. Our immigration compliance team is available to provide additional guidance and assist clients in addressing any immigration-related concerns.

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