Takeaways
- DHS announced in a final rule that it will apply a new H-1B selection process, replacing the random lottery, to allocate cap-subject H-1B visas beginning with FY 2027.
- Registrants submitted under higher wage levels will have a better chance of being selected, with positions under the highest wage level having a four times higher chance of being selected.
DHS has announced a final rule that replaces the usual randomized selection lottery H-1B cap selection process for one favoring higher-skilled and higher-paid foreign professionals. The “Weighted Selection Process for Registrants and Petitioners Seeking to File Cap-Subject H-1B Petitions” final rule is scheduled to be published on Dec. 29, 2025, and go into effect Feb. 27, 2026.
DHS noted the final rule is set to go into effect in time for the FY 2027 registration.
The rule implements a weighted selection process to “prioritize the allocation of visas to higher-skilled and higher-paid aliens to better protect the wages, working conditions, and job opportunities for American workers.” DHS also stated the rule will further “strengthen the integrity of the H-1B nonimmigrant visa program,” consistent with its other changes, such as the $100,000 H-1B visa fee.
The final rule uses a selection process that gives registrants greater odds based on the highest Occupational Employment and Wage Statistics (OEWS) wage level assigned for the position. The higher the OEWS wage level the more entries into the selection pool.
Under the new system, when the number of H-1B registrations exceeds the number of available H-1B visas (85,000), each unique beneficiary will be entered into a lottery with weighted odds as follows:
- Registrations assigned a level IV wage will be entered into the pool four times.
- Registrations assigned a level III wage will be entered into the pool three times.
- Registrations assigned a level II wage will be entered into the pool two times.
- Registrations assigned a level I wage will be entered into the pool one time.
The selection process will use wage data gathered at the registration stage, DHS stated; and employers must submit additional data, including the SOC code, area of intended employment, and the highest wage level the proffered wage meets or exceeds. For beneficiaries working in multiple locations, or in multiple positions if the registrant is an agent, the registrant must select the lowest corresponding OEWS wage level the beneficiary’s proffered wage will equal or exceed. If the beneficiary’s proffered wage is expressed as a range, the registrant must select the wage level the lowest wage in the range will equal or exceed.
Geographic wage differences remain. DHS rejected proposals to normalize wages nationally or adjust for cost-of-living beyond existing OEWS methodology. Employers in lower-wage locations may face structural disadvantages in selection odds.
In addition, employers should be aware that for selected petitions, USCIS will be requiring evidence of the basis of the wage level selected and focusing on discrepancies between the representations made during registration and the substantive material and explanation in the petition. Inconsistencies or false statements could lead to requests for evidence, denials, or referrals for enforcement.
The new H-1B cap selection system drastically alters the likelihood of individuals being selected. Employers should begin reviewing their visa employees and strategizing well in advance of the upcoming H-1B cap season.
Jackson Lewis attorneys are available to advise and consult on the upcoming changes to the H-1B cap lottery process.