In recent years the odds of being selected in the annual H-1B lottery have been around twenty percent. Individuals with graduate degrees from a non-profit university in the United States fared slightly better. The odds for the lottery that will run in March 2026 will be difficult to predict.
The largest of the elephants in the room is the $100,000 surcharge that the White House announced in typical fashion on a late Friday afternoon on September 19, 2025. The order is anything but a model for clear language or good grammar and as such leaves open the question of which employers must pay this ridiculous fee. It states that it applies to persons who were outside the United States on September 19, 2025. It therefore appears to exclude many H-1B lottery hopefuls, such as F-1 students in the United States who either are completing their studies or working pursuant to post-graduate Optional Practical Training (OPT) work authorization.
There currently is litigation pending over the legality of the executive order. One of the key issues is whether the president has authority to assess a new few without going through the rulemaking process of publishing a proposed rule, allowing for public comments, and then implementing the rule. There also are logistics issues of how exactly an employer would pay the fee. It’s yet another example of the administration’s penchant for leading with punitive intent and without careful planning.
The other elephant in the room is the proposed weighted selection rule for the lottery, which was published September 24, 2025. The last time the circus was in town, the administration tried to implement this rule but ran out of time before it understood how government operates. President Biden promptly canned it. Now it’s back and gunning for the March 2026 lottery to allocate the 85,000 visas based upon wage levels. Employees with higher wages would have significantly better chances of being selected.
If the $100,000 fee is upheld, and if the wage-based selection rule goes into effect, the 2026 lottery odds very well could be much different than in recent years. Many employers may choose to forgo the lottery altogether, which would improve the odds of others who either have the stomach or nerve for extortion and simply cannot find the talent they need among U.S. workers. Several interesting months stand between now and next March.