Speakers: Angelo A. Paparelli
Disclaimer: The views and opinions expressed in this article are solely those of the author and do not necessarily reflect the official policy or position of WERC.
The Department of Homeland Security’s new wage-weighted H-1B cap selection rule and the presidential proclamation imposing a $100,000 H-1B fee require a structural shift in how U.S. employers must approach global talent acquisition.
Although three civil suits challenging the $100,000 rule are pending in the federal courts, timing constraints make it uncertain that courts will enjoin the proclamation or the rule before the first H-1B lottery selection cycle in April 2026. Mobility leaders should therefore plan for compliance while monitoring litigation closely.
Given the likelihood that both the weighted selection rule and a $100,000 fee will shape hiring outcomes, employers may wish to consider a portfolio-based approach rather than a single, uniform response.
Some employers will consider selectively increasing wages only for mission-critical roles to improve selection odds. The internal analysis should extend, however, beyond immediate H-1B selection odds and account for downstream immigration strategy and public-facing pay obligations.
Higher proffered wages can materially affect PERM labor certification and permanent residence planning, including prevailing wage determinations, recruitment, and the feasibility of future role changes or promotions without restarting the green card process. A wage set primarily to optimize H-1B selection may inadvertently lock the employer into a higher long-term wage floor or create misalignment with internal job architecture at later stages.
At the same time, employers must evaluate pay transparency and disclosure requirements, including state and local laws mandating salary range postings and internal pay-equity disclosures. Inflated or selectively elevated wages—particularly if visible in job postings or internal compensation bands—can trigger employee relations issues, regulatory scrutiny, or challenges from existing staff. Once visible, those differences may raise questions from other employees in similar roles and create legal, employee-relations, or compliance issues that employers must be prepared to justify under applicable equal pay, anti-discrimination, or transparency laws.
For these reasons, any wage-adjustment strategy should be coordinated across immigration, compensation, legal, and HR functions to ensure that short-term selection benefits do not create longer-term compliance or workforce-management risks.
Not every role may warrant a wage escalation. Many employers will stratify roles into “must-have” roles where higher wages are justified, and development or pipeline roles where alternative strategies are preferable.
At the same time, employers should consider expanding pathways beyond cap-subject H-1B visas, including concurrent cap-exempt H-1Bs, O-1 visas, treaty-based categories (i.e., Es, H-1B1s, TNs), J-1 exchange visitors, earlier L-1 planning, and global remote deployment and relocation models to more welcoming nations.
Mobility leaders should therefore consider a dual-track strategy:
- Plan for compliance as though the rule will apply when registrations under the lottery are required in March 2026, and
- Engage with counsel to monitor litigation, assess participation options, and preserve strategic flexibility if relief through the courts becomes available later.
In-house mobility leaders should be working now with experienced immigration, employment, and administrative law counsel to stress-test wage strategies, diversify talent pipelines, and ensure that registration decisions are deliberate rather than reactive.
The rule and the proclamation change the process, but they do not eliminate choice. Thoughtful planning, informed risk-taking, and early legal engagement will distinguish employers who adapt from those who are forced to react.