On September 24, 2025, the U.S. Department of Homeland Security (DHS) published a proposed rule[1] that seeks to significantly alter the H-1B registration selection process in the Annual H-1B Cap-Subject Visa Lottery by “implementing a weighted selection process that would generally favor the allocation of H-1B visas to higher skilled and higher paid [foreign nationals], while maintaining the opportunity for employers to secure H-1B workers at all wage levels….” . The proposed rule aims to amend the process through which DHS selects registrations for unique beneficiaries to move away from a purely random process to a weighted selection process. Upon the proposed rule’s implementation, registrations associated with higher wage levels would be entered multiple times in proportion to their wage level— four entries for the highest wage tier, decreasing incrementally down to a single entry for entry-level positions. The change would apply to both the 65,000 regular H-1B cap-subject petitions and the 20,000 advanced degree exemption.
Overview of the Proposed Rule
- Weighted Selection Process for Annual H-1B Cap-Subject Visa Lottery by Wage Level: For purposes of the weighting and selection process proposed in the rule, a registrant would be required to select the box for the highest Occupational Employment and Wage Statistics (OEWS) wage level (Wage Level IV for “fully competent”; Wage Level III for “Experienced”, Wage Level II for “Qualified” and Wage Level I for “Entry”) that the beneficiary’s proffered wage generally equals or exceeds for the relevant Standard Occupational Classification (SOC) code in the area(s) of intended employment. The registrant would also be required to provide the appropriate SOC code of the proffered position and the area(s) of intended employment that served as the basis for the OEWS wage level indicated on the registration, in addition to other information required on the electronic registration form (and on the H-1B petition). The H-1B Cap-Subject Visa Lottery will remain “beneficiary-centric” and USCIS will enter each unique beneficiary into the selection pool in a weighted manner, as follows:
|
Level IV – 67th percentile of the OEWS wage distribution for the relevant occupation in the relevant location |
4 entries |
|
Level III – 50th percentile of the OEWS wage distribution for the relevant occupation in the relevant location |
3 entries |
|
Level II – 34th percentile of the OEWS wage distribution for the relevant occupation in the relevant location |
2 entries |
|
Level I – 17th percentile of the OEWS wage distribution for the relevant occupation in the relevant location |
1 entry |
- Scope: The change would apply to petitions subject to both the 65,000 regular H-1B cap and the 20,000 advanced degree exemption.
- DHS Rationale: According to DHS, “pure randomization does not serve the ends of the H-1B program,” and prioritizing higher wage levels would better align with congressional intent to attract and retain highly skilled workers.
Economic Impact
DHS estimates that the proposed rule would increase the total annual salaries paid to H-1B workers by $502 million in the first year, bringing aggregate H-1B wage payments to approximately $9.36 billion. Average annual salaries for FY 2024 H-1B workers ranged from $85,006 (Level I) to $162,528 (Level IV).
Context
The proposal follows a September 19 presidential proclamation[2] issued by President Trump imposing a $100,000 fee on new H-1B petitions. The Administration has framed these measures as necessary to curb reliance on foreign talent in science, technology, engineering, and mathematics (STEM) fields. Critics, however, caution that the changes could discourage employers from sponsoring skilled workers and push operations offshore, ultimately undermining U.S. competitiveness.
Next Steps
The proposed rule is currently subject to a 30-day public comment period. Employers relying on the H-1B program should closely monitor developments and consider participating in the notice and comment process by submitting comments addressing the practical and economic impact of the wage-weighted selection process. Gunster’s Immigration Practice Group will be closely monitoring developments surrounding the proposed rule during the comment period and throughout the course of the federal rulemaking process.
[1] “Weighted Selection Process for Registrants and Petitioners Seeking To File Cap-Subject H-1B Petitions,” 90 Fed. Reg. 45986 (Sept. 24, 2025)
[2] “Restriction on Entry of Certain Nonimmigrant Workers,” Proclamation 10973, 90 Fed. Reg. 46027 (September 19, 2025)
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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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