What’s Happening
The Department of Homeland Security (DHS) has issued a final rule replacing the random, computerized H-1B visa lottery with a weighted selection process favoring higher wage applicants. This rule is unchanged from the proposed rule published in September this year. The final rule was published in advance in the Federal Register on December 23, 2025, and is scheduled for full publication on December 29, 2025. It is set to become effective 60 days after publication, on February 27, 2026, in time for the Fiscal Year 2027 H-1B cap season set to begin in March 2026, although litigation challenging the rule in federal court is possible.
What You Need to Know
Under the legacy framework, USCIS conducted a random, computerized selection process giving each registrant an equal chance regardless of wage level or job characteristics. The new rule abandons this process and instead applies a tiered weighted selection system based on the wage level associated with the offered position under the Department of Labor’s Occupational Employment and Wage Statistics (OEWS) four-level prevailing wage system. Registrants whose offered wages correspond to higher OEWS levels receive more entries in the selection pool.
4-Tiered Weighted System Based on Wage Level Corresponding to Offered Salary
Under the new system, individuals with higher wages will receive multiple entries in the selection pool as follows:
Level IV Wages = 4 entries in selection pool
Level III Wages = 3 entries in selection pool
Level II Wages = 2 entries in selection pool
Level I Wages = 1 entry in selection pool
This approach increases the probability of selection for higher wage positions relative to lower wage ones, with the odds of selection increasing along with a beneficiary’s OEWS wage level. The rule acknowledges that some employers may offer higher wages to certain foreign nationals to stay competitive in the selection process. Such wages need not match the skill level, as they may reflect the beneficiary’s unique value to the employer.
The rule provides parameters governing what wage should be used for registrants being sponsored by multiple employers or working in multiple work locations, generally requiring registrants to use the lowest wage across employers or worksites for purposes of assessing the amount of entries into the selection pool. Similarly, if the offered wage is expressed as a range, the lowest wage in the range must be used for selection.
Practical Implementation Considerations
During the registration stage, employers will be required to indicate the OEWS wage level, occupational code, and area of employment associated with each beneficiary’s offered position.
Notably, the weighted selection system is based on the OEWS wage level reported at registration, not the wage level that will be used on the Labor Condition Application (LCA) that must be filed with the H-1B petition for selected registrations.
If a beneficiary is selected, the subsequent Form I-129 H-1B petition must support the wage level claimed at registration. USCIS may deny a petition or revoke an approval if it determines that the wage level at petition filing does not align with, or undercuts the wage level used for weighted selection.
The final rule does acknowledge that legitimate changes in the intended work location may occur between registration and petition filing. USCIS may, at its discretion, allow a location change to a lower wage level if it considers the change consistent with a bona fide job offer at registration.
What Remains The Same
The statutory numerical limits for H-1B visas remain the same: 65,000 regular cap visas and 20,000 advanced degree visas.
The overall H-1B registration and petition process remains in place, with the selection process happening electronically followed by filing of a full H-1B petition supported by an approved LCA for selected registrants.
Advanced degree holders will continue to receive an advantage, now combined with weighted odds based on wage level.
Increased Cost Considerations for Employers
This change is coupled with President Trump’s September 2025 proclamation requiring a $100,000 fee for H-1B petitions filed or approvable for consular notification, thus significantly increasing the cost of sponsorship for many employers.
In addition, the Office of Management and Budget is currently considering a proposed rule submitted by the Department of Labor (DOL) that is expected to seek to increase the prevailing wage levels for H-1B (and PERM) cases.
D&S is continuing to monitor this developing situation and will provide updates as they become available.