The importance of H-1B contingency planning in 2026

This year’s initial H-1B visa selection process saw two significant changes: the $100,000 fee for certain H-1B petitions and the new weighted selection rule. Although we’re still waiting for U.S. Citizenship and Immigration Services to drop the official registration numbers and selection rates from the fiscal year (FY) 2027 lottery, employers have reported higher selection rates across wage levels, and especially in the highest wage category.

These higher selection rates are likely due to lower registration numbers, as some employers were deterred by recent changes. Still, H-1B visa demand continues to outpace supply. Under federal law, 85,000 cap-subject visas are available each year, including 20,000 set aside exclusively for advanced degree holders.

How do you keep your talent pipeline flowing? H-1B contingency planning is a critical step for HR teams hiring foreign national employees. Now more than ever, it is important to have a backup plan for employees who were not entered into the H-1B lottery because of the $100,000 requirement, who were not selected in the initial selection process or whose current work authorization will expire soon.

Some of the more common H-1B alternatives include:

Nationality-specific nonimmigrant visas

Under bilateral agreements, certain nationalities are eligible for temporary nonimmigrant visas. These visas include:

• H-1B1 specialty occupation visas for citizens of Chile and Singapore
• E-3 specialty occupation status for Australian citizens
• TN classification for citizens of Canada and Mexico

All of these visa types have some elements in common with the H-1B visa, but there are also key differences. For example, the TN category is limited to a set list of occupations in the United States-Mexico-Canada Agreement, rather than the broader pool of specialty occupations under the H-1B visa category.

L-1 intracompany transfer visas

The L-1 category allows companies with international offices to transfer employees in managerial or specialized knowledge positions from a foreign branch or affiliate office to their U.S. offices. Only employees with at least one year of experience within the company’s foreign operations in the last three years are eligible.

Some companies may consider longer-term strategies of employing select candidates in their overseas office for a year and then applying for L-1 status. Employers must consider other countries’ residence and work authorization requirements when assigning employees to a branch or affiliate office outside the U.S.

O-1 “extraordinary ability” visas

Individuals demonstrating extraordinary ability in business, science, education, art or athletics may qualify for an O-1 visa. This category requires evidence of distinguished achievements such as published articles, peer-reviewed activities, major awards or employment in a critical capacity for a well-known organization.

Fair warning: Applying for an O-1 visa is a long, evidence-intensive process. Candidates should begin at least eight months before they plan to submit their application.

J-1 exchange visas

Companies may bring foreign students and graduates of foreign universities to the U.S. as trainees for up to 18 months or as interns for up to 12 months. One of the limitations of this category is that employers may not hire a J-1 visitor for a position that is filled or would be filled by a full-time or part-time employee.

Exchange visitors also must prove their intent to return to their home country and in some cases must return to their home country for two years at the end of their J-1 status.

Spousal visas

In some cases, spouses of nonimmigrant visa holders may be eligible for work authorization. For example, L-2 and J-2 visa holders can qualify for work authorization, and H-4 visa holders may be eligible depending on how far along their spouse is in the green card process.

Immediate green card sponsorship

This option is available in limited circumstances as an H-1B alternative. For example, it could be an option for employees who still have most of their F-1 STEM OPT work authorization remaining and are not in an affected green card category. Although not a visa option, early green card sponsorship may be worth pursuing.

BAL helps employers explore pathways to permanent residency that meet their business needs, including whether to pursue permanent labor certification (PERM) or a national interest waiver.

Visualize your plan (H-1)B and start securing top talent

Every cap season has its own flavor, and we don’t always know how economic trends and regulatory changes will impact H-1B demand. We do know that recent H-1B program changes likely reduced the pool of registrants in FY 2027, yet the program continues to be oversubscribed.

A well-advised H-1B contingency plan can set your organization up for success. Contact BAL for support with visas and employment authorization for your global workforce.

Copyright © 2026 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries, please contact copyright@bal.com.