“Weighted Selection Process for Registrants and Petitioners Seeking to File Cap-Subject H-1B Petitions”
The Department of Homeland Security (DHS) has issued a final rule implementing, without change, the weighted H-1B lottery process contained in the September 2025 proposed rule. The weighted lottery rule increases the odds of selection for H-1B lottery registrations when the beneficiary is being offered higher wages relative to the applicable prevailing wage and job location for the H-1B occupation under the Bureau of Labor Statistics wage survey (OEWS).
The final rule will be effective on February 27, 2026, which means that unless successfully challenged through litigation in Federal Court, the changes to the H-1B lottery registration and selection processes will be effective for the FY2027 H-1B Cap-Subject Visa Lottery that will take place in March 2026.
Under the final rule, registering employers will need to first determine the appropriate OEWS occupational code, the area of intended employment, and the offered salary for each beneficiary they register in the H-1B Cap-Subject Visa Lottery. This information will be used to determine and designate the highest applicable OEWS wage level (I, II, III, or IV) that the offered wage meets or exceeds. Registrations that offer a Level IV wage will receive four entries in the Lottery, a Level III wage will have three entries in the Lottery, a Level II wage will have two entries in the Lottery, and a Level I wage will have one entry in the Lottery. An offered wage that is lower than the OEWS Level I wage (due to a private survey or collective bargaining agreement) will still receive one entry in in the lottery.
If selected in the H-1B Lottery, H-1B Cap-Subject petition filings must be consistent with the information in the registration submission. Attempts to later amend H-1B petitions by the registering employer or a related entity will be presumptively disallowed unless the petitioning employer can show that the amendment is not part of a scheme to misrepresent the true wage, worksite, and/or occupation in the H-1B registration to increase lottery selection odds.
A link to the full text of the final rule can be found here: Federal Register :: Weighted Selection Process for Registrants and Petitioners Seeking To File Cap-Subject H-1B Petitions. See also Gunster’s previous Immigration Practice Alert here: DHS Proposes Weighted Selection Process for Registrants and Petitioners Seeking to File Cap-Subject H-1B Petitions in Annual H-1B Lottery | Florida's Law Firm for Business.
THE $100,000 H-1B FEE IMPOSED BY PRESIDENTIAL PROCLAMATION RESTRICTING H-1B ENTRY REMAINS IN PLACE
In a detailed decision published on December 23, 2025, a federal district court judge in Washington, D.C. ruled in favor of the administration on the issue of President Trump’s September 19 Proclamation imposing a $100,000 fee on certain H-1B petitions.
The U.S. Chamber of Commerce and the Association of American Universities had argued that the imposition of the fee was outside the authority of the President, but the district court found that the Proclamation was lawfully issued pursuant to Section 212(f) of the Immigration and Nationality Act, which authorizes the President to impose any restrictions he deems necessary upon the entry of noncitizens into the United States.
The Proclamation applies to all H-1B petitions filed after September 20, 2025, if the petition is filed for—or only approvable for—consular notification. Employers are required to pay $100,000 via ACH transfer at a designated pay.gov website in order for USCIS to approve the petition. See Gunster’s Immigration Practice Alert: USCIS Guidance on the H-1B Fee Imposed by Presidential Proclamation Restricting H-1B Entry | Florida's Law Firm for Business.
The U.S. Chamber of Commerce issued the following statement following the U.S. District Court’s decision upholding the Presidential Proclamation imposing a $100,000 H-1B Visa Fee:
“The $100,000 fee makes H-1B visas cost prohibitive for businesses, especially small- and medium-sized businesses that can least afford it. We are disappointed in the court’s decision and are considering further legal options to ensure that the H-1B visa program can operate as Congress intended: to enable American businesses of all sizes to access the global talent they need to grow their operations.”
There are two other lawsuits challenging the $100,000 H-1B Fee Proclamation—Global Nurse Force v. Trump in the Northern District of California, which has a preliminary injunction hearing set for February 19, 2026, and State of California v. Noem in Massachusetts (the so-called, “Multistate Attorneys General Lawsuit” led by the Attorneys General in California, Massachusetts and 20 Democratic-led States), which was just filed on December 12, 2025.
THE U.S. DEPARTMENT OF STATE IMPLEMENTS EXPANDED SCREENING AND VETTING FOR H-1B AND DEPENDENT H-4 VISA APPLICANTS
Social Media Vetting has begun for Applicants for H-1B visas – along with their spouses and children seeking H-4 visas – who must now undergo increased security screening that includes a review of their social media activity and online work history (such as Linked In). Starting December 15, the State Department is requiring H-1B applicants and their family members seeking related visas, to make their social media profiles public so consular officers can scrutinize their posts, photos, comments, connections, and biographies across certain online platforms. Social media information will be used to verify employment background and screen for security risks.
Developments continue to evolve, and Gunster’s Immigration Law Group is closely monitoring agency guidance and implementation.
Should you wish to receive timely updates and further information concerning these and other Immigration matters, please contact Gunster’s Immigration Law Practice.
This publication is for general information only. It is not legal advice, and legal counsel should be contacted before any action is taken that might be influenced by this publication.
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This publication is for general information only. It is not legal advice, and legal counsel should be contacted before any action is taken that might be influenced by this publication.
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