Immigration Insider - November 2025

By Kerr, Russell and Weber, PLC

November 11, 2025

Below is this month's edition of Kerr Russell's Immigration Insider.
 

The H-1B Lottery is Not Dead (Yet)

By Miroslava Orduño Rincón

If you are looking for a quick answer as to whether it is worth entering the H-1B visa lottery for your existing employees due to the new $100,000 fee imposed on new H-1Bs, the answer is generally a resounding YES. However, the answer may be different if you are hoping to recruit new talent from abroad under the H-1B.

On October 20, 2025 US Citizenship and Immigration Services (USCIS) released guidance concerning this fee, which confirmed that the fee does not “apply to any previously issued and currently valid H-1B visas, or any petitions submitted prior to” the Proclamation nor to any petitions filed after the Proclamation where an amendment, change of status, or extension are approved. The key for lottery hopefuls lies in the language that indicates that new H-1B petitions for lottery selections would NOT be subject to the $100,000 fee, even if the petition is filed after September 21, 2025 if a change of status is filed and approved. Such individuals would also not be subject to the payment when seeking to obtain an H-1B visa stamp in their passport or re-entering the U.S. on that visa. As the vast majority of H-1B lottery entrants tend to already be in the U.S. in valid F-1 student status, or other non-immigrant status such as TN, J-1 or L-1, they will not be subject to this fee and employers should plan on entering employees in the upcoming lottery.

The $100,000 fee will apply to the following H-1B petitions filed after 12:01 AM on September 21, 2025:

• Consular notification petitions usually filed for individuals that are outside of the U.S., making recruiting new talent from abroad under the H-1B lottery is even less appealing than it already was. This is a major blow for cap-exempt employers such as healthcare or educational institutions that rely on foreign talent not subject to the lottery.
• Petitions with Port of Entry Notification or Pre-Flight Inspection commonly used by visa-exempt Canadians intending to commute daily into the U.S. or that have yet to relocate.
• Petitions where a change of status, amendment or extension of stay is not granted because “USCIS determines that the alien is ineligible for a change of status or an amendment or extension of stay (e.g., is not in a valid nonimmigrant visa status or if the alien departs the United States prior to adjudication of a change of status request)”.

Cases for which a change of status back to H-1B may be denied include individuals present in a period of stay authorized by the attorney general (POSABAG), which is the time when an individual may remain in the U.S. even if their lawful status has expired. A common example is an individual with a pending B-1 or B-2 change of status filed during the 60-day grace period following termination of H-1B employment. Guidance that permitted individuals with a pending change of status application to B-1 or B-2 to file a subsequent H-1B petition was archived, though not rescinded by USCIS. Therefore, the POSABAG granted by the pending B-1/B-2 petition may no longer be considered to serve as a bridge to change status back to H-1B. Under such a scenario, USCIS may approve the H-1B with consular notification and the employer would need to pay the $100,000 fee in order to return to the U.S.

In summary, the H-1B lottery is not dead because of this onerous fee. However, this Proclamation will undoubtedly do damage through discouraging some to enter the lottery even if they would not be subject to the fee if selected.

Third Country Visa Processing Restricted

On October 10, 2025, the U.S. Department of State announced that applicants for nonimmigrant visas must schedule their appointments in their country of nationality or residence. Previously, applicants were able to make appointments in third countries, if permitted by the individual Consulate, which alleviated concerns of long appointment wait times and the time required for lengthy travel. The Department of State noted that existing appointments would not be canceled, and that rare exceptions may be made for humanitarian emergencies or foreign policy reasons. Along with previous restrictions on visa appointment waivers, this change is likely to increase wait times at Consulates. Applicants are encouraged to schedule their appointments as early as possible.

Termination of Automatic Extension for Employment Authorization Documents

The Department of Homeland Security announced that individuals who file to renew their employment authorization document (EAD) on or after Oct. 30, 2025, will no longer receive an automatic 540-day extension of their work authorization. This automatic extension was implemented to allow foreign nationals to continue working despite government processing delays if their EAD renewal application was filed prior to the initial expiration. The individuals who will no longer be eligible for automatic extension include those with approved or pending asylum applications; spouses of H-1B status holders; foreign nationals who hold Temporary Protected Status; and applicants for a green card (adjustment of status). The STEM OPT 180-day extension is not impacted. Government processing times remain lengthy for employment authorization document applications. In order to provide the best chance for uninterrupted eligibility to work, applicants should file renewal applications as early as they are eligible to do so.

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