It has been a turbulent year for H-1B visa holders and those looking to pursue an H-1B visa. The final month of 2026 does not appear as if it will bring relief for those facing growing uncertainty.
The first week of December has brought news of new screening procedures for H-1B visa applicants as well as a response from the Department of Justice in the legal battle over H-1B fees.
New visa screening for H-1B, effective December 15
Starting December 15, 2025, the U.S. Department of State will expand its “online presence review” requirement to apply to all H-1B visa applicants, and their H-4 dependents.
Under the new policy, consular officers may review social media profiles, requiring applicants to make their online posts, networks, and employment information accessible by adjusting privacy settings to “public.”
This marks one of the broadest expansions of digital vetting for foreign workers, what had previously applied mainly to students and exchange-visitor visa holders. The screening will now cover skilled-worker visas, reflecting a shift toward more intensive scrutiny of all visa applicants.
The move has stirred concerns among H-1B applicants and potential sponsors about privacy, potential delays, and increased risk of denial based on online activity long before any work begins.
Given this new screening, individuals seeking to travel, renew, or obtain a visa outside the U.S. may need to carefully review their digital footprint, and weigh the implications for future visa applications.
The $100,000 H-1B fee: and the DOJ’s response to the challenge
In September 2025, the administration introduced a sweeping change to the H-1B program via a presidential proclamation. Under the rule, many new H-1B petitions, particularly for workers outside the U.S., must be accompanied by a $100,000 “supplemental fee.”
That fee applies only to new H-1B petitions filed on or after September 21, 2025, for beneficiaries lacking a valid H-1B visa or requiring consular processing. According to guidance from the U.S. Citizenship and Immigration Services (USCIS), extensions, amendments, and change-of-status petitions filed within the U.S. remain exempt. The $100K fee has provoked sharp backlash, especially from small and midsize employers — because it dramatically raises the cost of hiring foreign talent.
In response to a suit filed by the U.S. Chamber of Commerce challenging the fee as unlawful, the DOJ has responded, defending the administration’s authority. The DOJ argues that the $100,000 payment is not a “fee” in the traditional sense, but a condition on entry, a restriction on nonimmigrant status allowed under the president’s statutory powers.
According to DOJ, because this payment is a restriction rather than a visa-processing fee collected to recoup administrative costs, it does not violate the fee-setting provisions of the Immigration and Nationality Act (INA). Whether the court will accept that interpretation remains to be seen, but the filing makes clear the administration’s intent to enforce the fee through the upcoming H-1B lottery and consular processing cycles.
Why now is a compelling time for H-1B holders to consider EB-5
With the changing H-1B landscape, more intrusive vetting, and expensive entry fees, many visa holders are rethinking the long-term viability of the H-1B. For some, that rethinking leads naturally to the EB-5 program.
Permanent residence instead of temporary visa
Unlike H-1B status, which is temporary and tied to a sponsoring employer, the EB-5 investor visa provides a direct route to permanent residency (green card) for the investor and their immediate family (spouse and children under 21). EB-5 does not demand employer sponsorship, labor-certification, or years-long queues typical for employment-based green cards (especially for nationals of high-demand countries).
Greater control, flexibility, and stability
Once granted, EB-5 conditional permanent residency allows holders to work, start businesses, change employers, or relocate, without being locked to one sponsoring employer. That flexibility is particularly appealing if you foresee career changes, entrepreneurship, or just want long-term security. Given that H-1B renewals and consular re-entries may become more cumbersome, EB-5 offers insurance against visa-policy uncertainty.
More favorable cost–benefit balance, especially for those with means
While EB-5 requires a significant investment of $800,000, many H-1B holders, especially in tech, healthcare, or other high-earning fields, may find the long-term benefits worth the upfront cost. Rising home equity in U.S. real estate and savings accumulated during years of employment have made that investment more accessible, enabling families to convert years of living/work into permanent residency.
Please note that the above article is intended for informational purposes only. Anyone with a specific issue relating to H-1B or EB-5 should consult with an experienced immigration attorney.
