H-1B Cap Lottery for Fiscal Year (FY) 2026 Completed
U.S. Citizenship and Immigration Services (USCIS) has announced that it has received sufficient congressionally mandated 65,000 H-1B visa regular cap and 20,000 H-1B visa U.S. advanced degree exemption, known as the ‘master’s cap’ filings for Fiscal year 2026.
USCIS will notify registrants of their non-selection through their online accounts over the next few days and weeks. Prior to this year, USCIS conducted at least one more round of selections to meet the quota. This year, they conducted only one round of selections. Next year’s H1-B cap filing period is expected to be announced in early 2026.
Formal proposals to overhaul the H-1B cap selection process submitted by administration for next year’s H-1B visa filings
The Trump administration submitted a proposal outlining its intent to significantly overhaul the H-1B cap selection process for the upcoming filing period in 2026. Current regulations permit USCIS to conduct a random lottery to select 85,000 registrations. The administration has proposed a weighted selection system that would give priority to applications offering higher wages, among other potential factors.
The proposal results in the shift to favoring first-time H-1B applicants who would be higher paid and more highly skilled, likely to the detriment of entry-level talent, including foreign students. The transition represents a more merit-driven and wage-driven system, unlike the simple statutory language of the H-1B visa requirements. Important to note is that it was only in the 1990’s that the H-1B visa was numerically capped and a prevailing wage requirement was imposed. We expect that the proposed regulations will be challenged in federal court. Therefore, it is too soon to know whether these regulations will be effective in March 2026 when the new lottery registrations and submissions will take place.
Ninth Circuit Court of Appeals blocks the President’s Executive Order Repealing Birthright Citizenship
On July 23rd, the Ninth Circuit federal appeals court in San Francisco declared the President’s attempt to repeal birthright citizenship unconstitutional. The verdict stated, among other statements, that the Executive Order issued by the President on January 20th was ‘invalid because it contradicts the plain language of the Fourteenth Amendment’s grant of citizenship’ to ‘all persons born in the United States and subject to the jurisdiction thereof”. The White House plans to appeal.
The Executive Order signed by the President stated that children born in the United States should not automatically be eligible for US citizenship if one parent is undocumented and the other is not a U.S. citizen or green card holder, or if both parents are in the United States on temporary visas. Foreign students pursuing studies in the United States, foreign workers on temporary work visas, and others who might have children born in this country would have to secure alternate documents to ensure that such children would be considered legally present in the United States. The administration has argued that citizenship may only be granted to those who have ‘allegiance’ to the country, and for this reason, they are not ‘subject to the jurisdiction’ of its laws and authority.
While the issue of birthright citizenship did reach the Supreme Court earlier this year, it was not a case involving the merits of the administration’s policy; rather, the Court determined that district courts did not have authority to issue nationwide blocks against the President’s Executive Order. That decision was covered in our prior Alert here.
Historically, birthright citizenship was addressed by the 14th Amendment to the Constitution in 1868, overturning the notorious 1857 Dred Scott decision and granting citizenship to formerly enslaved Americans. It was further strengthened by the case of Wong Kim Ark in the context of the Chinese Exclusion Act. The effort to revoke birthright citizenship was reintroduced in the Congress in 1991. The Executive Order issued by the President in January 2025 was the boldest declaration regarding the effort to revoke birthright citizenship to date. Likely, this issue will be brought before the Supreme Court for a final decision as the current administration is determined to change the law. Alternately, the Supreme Court may defer to Congress to amend the Constitution.
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