Trump, Musk and the future of the H-1B visa: What to expect for FY2026

By Mary Kate Fernandez, Adams and Reese.

It’s that time of year again – the H-1B visa program is back in the spotlight as we enter the lottery registration period for Fiscal Year 2026. The lottery will be open from March 7-24, 2025.

The H-1B visa, designed to allow U.S. employers to hire foreign workers in specialty occupations, has long been a flashpoint in U.S. immigration policy, but it’s under even greater scrutiny between President Donald Trump’s shifting stance, Elon Musk’s headline-grabbing clash with conservatives and neck-breaking immigration reforms.

As we head into the FY2026 H-1B lottery, will Trump reinstate his tough restrictions or will business leaders like Musk push for a different approach? More importantly, what do recent regulatory changes – like DHS’s H-1B Modernization Rule – mean for employers and applicants?

If you're an employer or an aspiring H-1B worker, here’s what’s happening, what’s at stake and what you need to do to get ahead in the FY2026 lottery.

Trump’s evolving H-1B policies

In his first term, Trump adopted a stringent approach to the H-1B program, emphasizing the protection of American jobs. The 2017 “Buy American, Hire American” Executive Order led to increased scrutiny of H-1B petitions, resulting in higher denial rates and more frequent Requests for Evidence (RFEs). This period saw a significant impact on employers relying on foreign talent. In 2018, H-1B denial rates skyrocketed to 24%, up from just 6% in 2015.

Entering his second term, Trump’s stance appears to have shifted. In December 2024, he expressed support for the H-1B program. He surprised many by stating that he had “always supported the H-1B program” and acknowledged its role in attracting highly skilled workers essential for maintaining U.S. competitiveness. This change suggests a potential realignment of immigration policies to better balance economic needs with labor protections.

Elon Musk’s advocacy

Elon Musk, CEO of Tesla and SpaceX, is an H-1B success story. Musk now serves as a senior advisor to Trump, and Musk has been a vocal supporter of the H-1B program.

As a naturalized U.S. citizen who initially worked in the country under an H-1B visa, Musk credits the program for enabling his entrepreneurial success, and his companies have been active participants in the program. In 2024 alone, Tesla obtained 724 H-1B visas, underscoring the company’s reliance on international talent to drive innovation.

In late 2024, Musk’s defense of the H-1B program sparked controversy among conservative circles. Critics argue that the program could undermine American workers. In response to the backlash, Musk doubled down suggesting reforms such as significantly raising the minimum salary for H-1B positions.

Already, we may have seen the effect of these comments with the lottery registration fee increasing from $10 per registrant to $215 per registrant for FY2026.

The H-1B modernization rule: Key changes effective January 17, 2025

Amid these discussions, the U.S. Department of Homeland Security (DHS) introduced the H-1B Modernization Rule, effective January 17, 2025. This rule aims to update and streamline the H-1B program, enhancing its integrity and responsiveness to current workforce needs.

Key provisions include:

• Clarified definition of specialty occupation: The rule refines what constitutes a specialty occupation, emphasizing that the role must normally require a bachelor’s degree in a specific field directly related to the job duties.
• Entrepreneurial opportunities: It allows entrepreneurs to have their own companies file H-1B petitions on their behalf, facilitating startup growth and innovation.
• Strengthened cap-gap protections: The rule codifies the “cap-gap” extension and automatically extends F-1 student status and employment authorization until April 1 of the relevant fiscal year, previously September 30 of the prior fiscal year, preventing work authorization gaps for students transitioning to H-1B status.
• Enhanced enforcement measures: USCIS gains expanded authority to conduct site visits and impose penalties on employers who fail to comply with H-1B regulations, ensuring program integrity.

Preparing for the FY2026 H-1B lottery

With the FY2026 H-1B lottery registration window set from March 7-24, 2025, now is the time for employers and prospective applicants to prepare for the process.

This year’s lottery comes amid evolving regulations, so it’s more important than ever to be prepared, stay on top of changes and seek proper guidance.

Below are some steps to take to maximize your chances of success in this competitive program:

• Verify job eligibility: Confirm that the position qualifies as a specialty occupation under the new definitions.
• Familiarize with the H-1B modernization rule: Effective January 17, 2025, it introduces changes that could impact eligibility and application procedures.
• Prepare necessary documentation: Gather identification documents, academic credentials, professional experience records and any required licenses.
• Register online with USCIS: Lottery registrants need a USCIS account either individually or through a representative to participate in the lottery.
• Be mindful of deadlines: Ensure all materials are submitted within the registration window to avoid disqualification.
• Prepare alternative options: Formulate a back-up plan that includes other visa category alternatives like STEM OPT extensions, O-1 visas, or other eligible employment-based visas as contingency plans.

Conclusion

As we enter the FY2026 H-1B lottery, the stakes are high for both employers and skilled foreign workers navigating a shifting policy landscape. With President Trump’s potentially evolving stance, Musk’s advocacy and the implementation of the H-1B Modernization Rule, the program’s future is dynamic.

Stay informed, plan ahead and adapt to regulatory changes to increase the chance of success in this year’s lottery.  Whether you’re an employer seeking top talent or an applicant chasing opportunity, preparation starts now!

About the author

Mary Kate Fernandez practices primarily in all areas of business immigration, labor and employment law and litigation. With a niche practice in business immigration, Mary Kate assists employers in understanding the various immigration hire processes, compliance and documentation requirements.