H-1B Cap Season: What Employers Should Be Doing Now - Kodem Law

H-1B Cap Season: What Employers Should Be Doing Now

The H-1B cap season is one of the most competitive and time-sensitive immigration processes for U.S. employers. With demand continuing to exceed the annual statutory limit, employers that delay preparation often face missed opportunities. As a result, early planning becomes essential.

In addition, the upcoming cap season requires even greater attention. USCIS is placing heightened scrutiny on registrations and petitions based on wage levels and job quality, rather than treating selection as a purely random exercise. Therefore, employers must approach the cap season strategically aligning workforce needs, compensation structures, and compliance obligations well in advance.

Advance planning allows employers to reduce uncertainty, strengthen filings, and better support both business operations and foreign national employees.

Overview of the H-1B Cap Process

The H-1B program is subject to an annual numerical limit set by Congress.

Key points employers should understand:

  • 65,000 visas are available under the regular cap
  • 20,000 additional visas are reserved for beneficiaries with U.S. master’s degrees or higher
  • Employers must first submit an electronic registration
  • If registrations exceed the available numbers, USCIS conducts a lottery
  • Only selected registrations may proceed to full petition filing

Importantly, lottery selection only allows petition filing. However, it does not guarantee approval and it does not guarantee approval.

Before filing a full H-1B petition, employers must submit an electronic pre-registration for each beneficiary.

Key USCIS Updates Employers Should Note

Before filing a full H-1B petition, employers must submit an electronic pre-registration for each beneficiary. USCIS has announced the following updates:

  • The FY 2027 H-1B pre-registration window will open on March 4th and close on March 19th.

  • The registration fee is $215 per beneficiary

  • Only selected registrations may proceed to petition filing

Moreover, USCIS scrutiny continues beyond registration, with increased focus on:

  • Wage levels
  • Job legitimacy
  • Employer– employee relationships
  • Overall compliance

Petition adjudication remains rigorous even after selection.

Shift in Focus: Wage-Based Scrutiny and Selection Considerations

Starting FY 2027, the H-1B process is no longer viewed as simply a random lottery followed by routine filing. USCIS has made it clear that wage levels and the quality of the offered position are key factors in how petitions are reviewed and enforced.

Although USCIS still conducts a selection process, however, scrutiny continues after selection when registrations exceed the annual cap, employers should be aware that closer scrutiny continues after selection.

In particular:

  • Higher wage levels (Level III and Level IV) may face fewer challenges during adjudication
  • The wage level must accurately reflect the role’s duties, complexity, and level of responsibility
  • Lower wage levels for highly specialized roles are more likely to result in Requests for Evidence (RFEs)

For FY 2027, wage determination should be treated as a strategic and well-documented decision not just a routine compliance step. Proper wage alignment can significantly reduce risk and strengthen the overall petition.

Eligibility for the H-1B Visa

To qualify for H-1B classification, both the position and the employee must meet specific criteria.

Eligibility considerations include:

    • The role must qualify as a specialty occupation
    • The position typically requires at least a bachelor’s degree in a specific field
    • The employee must possess the required degree or equivalent experience
    • The employer must demonstrate a valid employer–employee relationship, including supervision and control

Weaknesses in any of these areas can result in delays, RFEs, or denials.

Key Actions for Employers (Now through March)

For the upcoming H-1B cap season, employers must immediately initiate strategic planning, as the new wage-weighted selection process prioritizes higher salaries. Key actions include identifying eligible employees (OPT/STEM OPT), auditing job descriptions for SOC codes, and preparing for the registration window, which typically opens in early March. Early preparation is critical to navigate the beneficiary-centric lottery and potential new fees. 

  • Identify Candidates & Audit Roles: Review current employees on F-1 OPT, STEM OPT, CPT, J-1, L-1B, or TN status who need sponsorship.
  • Wage-Based Strategy: Due to the new wage-weighted system, analyze salary levels (I-IV) to determine the likelihood of selection, as higher wages may offer better odds.
  • Prepare Documentation: Collect detailed job descriptions, work site information, and prevailing wage data.
  • Finalize Registration Data: Ensure all information is accurate, as it must match future petition filings.
  • Budgeting: Budget for increased registration fees ($215 per beneficiary) and potential new, higher fee structures. 

Important Timeline

H-1B Cap Season What Employers Should Be Doing Now

Evaluating Job Roles and Wage Requirements (SOC Code Analysis)

Proper job classification is critical to H-1B success.

Employers should carefully review:

    • Job duties and complexity
    • Required educational background
    • Selection of the correct SOC code
    • Appropriate prevailing wage level based on role and location

Incorrect SOC code selection or wage misalignment can:

    • Trigger Requests for Evidence
    • Raise compliance concerns
    • Lead to petition denial

Early analysis helps avoid costly corrections later.

Preparing for Labor Condition Application (LCA) Compliance

Once registration is selected, a certified Labor Condition Application (LCA) is required before filing the H-1B petition.

Employer obligations include:

    • Attesting to payment of the required wage
    • Ensuring working conditions do not adversely affect U.S. workers
    • Posting required notices at each worksite
    • Identifying all employment locations
    • Maintaining a compliant Public Access File

Failure to meet LCA requirements can result in penalties and increased scrutiny.

Worksite and Remote Work Compliance

Worksite location directly impacts wage and LCA requirements. Employers should evaluate:

    • Remote and hybrid work arrangements
    • Multiple worksites
    • Location-specific wage obligations
    • Whether future location changes require amended filings

Failure to address worksite compliance can lead to violations even after petition approval.

Preparing for Alternatives and Workforce Continuity

Because selection is not guaranteed, employers should plan backup options in advance, including:

    • Cap-exempt H-1B employment
    • Other nonimmigrant visa categories
    • Short-term staffing or workforce adjustments

For F-1 OPT and STEM OPT employees, employers should also plan for:

  • Employment authorization expiration dates
  • Cap-gap eligibility
  • Coordination to avoid work authorization gaps

Preparing for Increased Scrutiny and Ongoing Compliance

H-1B petitions remain subject to heightened review. Common focus areas include:

  • Specialty occupation analysis
  • Wage levels and SOC codes
  • Employer–employee relationship
  • Worksite and remote work arrangements
  • Post-approval compliance and site visits

Consistent documentation and internal coordination are essential.

Why Early Preparation Is Critical

Early planning enables employers to:

  • Reduce filing errors and compliance risk
  • Improve petition quality
  • Respond effectively to RFEs Retain key talent
  • Maintain business continuity

Proactive preparation strengthens both immigration strategy and overall compliance posture.

How Can Kodem Law Help You?

Navigating the H-1B cap season requires legal insight, strategic planning, and operational coordination. Kodem Law works closely with employers to manage every stage of the process from candidate assessment and registration strategy to petition filing and post-approval compliance.

Our goal is to help employers move through the H-1B cap season with clarity, confidence, and compliance while supporting long-term workforce planning.

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Disclaimer

The material provided is intended for educational and informational purposes only and does not constitute a comprehensive solution to any specific legal issue. The information is accurate as of the date of the presentation; however, laws and regulations may change over time, and the content may become outdated.