What’s Happening
The Department of Homeland Security (DHS) has provided an advanced copy of a notice of proposed rulemaking (“NPRM”) to amend the H-1B visa selection process, implementing a weighted selection system which aims to favor higher-skilled (and higher-paid) applicants.
The proposed rule is expected to be formally published in the Federal Register on September 24, 2025, followed by a 30 day period of public comment. It is expected that it will take several months following the end of the notice and comment period for DHS to review public input and publish the final rule along with its effective date (expected to be 30 to 60 days from the date of publication). In addition, updates would need to be made to the current online H-1B registration portal to reflect the new data that must be gathered as well as the weighted registrations. As such, it is not yet known whether the new system could be in place for the upcoming H-1B cap season (Fiscal Year (FY) 2027).
What You Need to Know
DHS proposes to amend the H-1B visa selection process by replacing the random selection process with a weighted selection system based on wages to be paid to the H-1B beneficiary. This change would apply to both regular cap and advanced degree petitions. The specifics of the weighting process are as follows:
4-Tiered Weighting System Based on Wage Level Corresponding to Offered Salary
The new system would allow for individuals being paid higher wages to be entered into the selection pool more times than individuals being paid lower wages 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 entries in selection pool
In light of this new weighted system, the new process will favor higher wage levels, with the odds of selection increasing along with a beneficiary’s Occupational Employment and Wage Statistics (OEWS) wage level. The proposed rule makes clear that it is the OEWS wage level associated with the wage being offered to the prospective H-1B employee that determines the number of entries in the selection pool and acknowledges that some employers may offer higher wages to certain foreign nationals to stay competitive in the H-1B process. Such wages need not match the skill level, as they may reflect the beneficiary’s unique value to the employer.
The proposed rule also 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
Employers would need to specify, during the registration stage, the wage level, the occupational code, and the area (i.e., location) of employment for the specific beneficiary.
If selected, the subsequent H-1B petition must document that the wage offered matches or supports the wage level listed during registration. USCIS may deny or revoke a petition if it finds the petitioner tried to unfairly boost a beneficiary’s selection chances by choosing an inappropriate wage level or lowering the wage in the petition compared to the lottery registration.
However, the proposal acknowledges 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.
Projected Impact on Selection Rates
The probability of being selected for wage level I is projected to be as follows:
Level 1 Wages = 48% decrease
Level 2 Wages = 3% increase
Level 3 Wages = 55% increase
Level 4 Wages = 107% increase
Increased Cost Considerations for Employers
This change would be coupled with the recently announced $100,000 fee for new H-1B petitions, thus significantly increasing the cost of sponsorship for many employers.
In addition, the September 19th Executive Proclamation announcing the $100,000 fee for new H-1B petitions also included a directive to the Secretary of Labor to initiate similar a similar rulemaking process in order to revise the prevailing wage levels to be “consistent with the policy goals of the proclamation” which include imposing “higher costs on companies seeking to use the H-1B program in order to address the abuse of that program while still permitting companies to hire the best of the best temporary foreign workers.”
D&S is continuing to monitor the roll out of this new regulation and will provide updates as they become available