What legal experts want professionals to know about H-1B changes in 2026

In 2025, the Trump administration targeted the IT industry’s use of the H-1B visa program. Companies were subjected to a $100,000 one-time fee for sponsoring a potential employee, and contractors relying on the visa received additional scrutiny.

In 2026, things aren’t likely to settle down, according to experts, who anticipate issues over the cap exemption criteria changes, a weighted selection for the H-1B lottery, and additional scrutiny of third-party work sites.

Cecilia Esterline, a senior immigration policy analyst at the Niskanen Center, a bipartisan thinktank in Washington, DC, told IT Brew that all of the proposed changes to the H-1B are concerning, and may reduce employers’ willingness to sponsor an employee from overseas.

“Now there’s this uncertainty and unpredictability that has been introduced into an otherwise somewhat predictable program,” Esterline said.

Breaking things down. The Trump administration released a proposed rule in September regarding cap exemption criteria. Because of the huge number of H-1B applicants every year, there’s a cap for these visas, with 65,000 available for all beneficiaries and 20,000 for those who have a US masters degree or higher. Certain employers, including nonprofit and government research organizations, also qualify for a cap exemption.

While no one is exactly sure how the Trump administration might change the H-1B in 2026, Esterline said that the industry saw the Biden administration expand the definition of who could qualify for the exemption, and expects to see this tightening under the Trump administration.

The current H-1B process also includes a randomized lottery system. A proposed change would transform this into a weighted selection lottery, which would assign greater odds to higher-wage applicants.

Esterline said that the additional scrutiny of H-1B holders at third-party work sites (i.e., subcontractors) will likely impact the tech sector, but won’t be a “huge deviation” from the norm. Companies may see additional requests for evidence, site visits, and more, which Esterline said many are already preparing for. (Requests for evidence for third-party work sites “skyrocketed” during Trump’s first term, Esterline added.)

“I think that those industries have been under additional security for quite a long time,” Esterline said. “It’s unclear what the changes will be specifically, but I think that’s likely a continuation of what they’ve already seen.”

How to handle the uncertainty. Adding to the uncertainty, the Trump administration announced in December that it would now require H-1B applicants and family traveling with them to have their social media accounts screened for evidence of “censorship.”

Esterline advised IT pros potentially impacted by this and other changes to speak to an immigration lawyer and stay on top of the latest developments.

“Right now, we’re not in the normal, in terms of normal H-1B procedures,” Esterline said. “I think not relying on past experiences, or what has worked for a company in the past, but continuing to update those practices to meet the new moment is what will be required.”

Jorge Lopez, the chair of immigration and global mobility practice group at global employment and labor law practice Littler, told IT Brew that professionals who are involved with this program should be more careful with personal activities.

“You have to be more careful as to what you do on a personal basis from the employee’s perspective,” Lopez said. “You know, what kind of information gets out there and really how that makes the employer relationship work.”