The Department of Homeland Security (DHS) has proposed a major revision to how H-1B cap-subject petitions are selected.
The proposed rule, which was released Tuesday, would modify the current random lottery system and introduce a weighted selection process based on wage levels. The proposed rule was published in the Federal Register on September 24, 2025, and is subject to a 30-day comment period. It is important to keep in mind that it is not yet finalized nor effective.
Under the current selection process, each beneficiary has an equal chance at selection in the random lottery, regardless of wage level. Here’s what the proposed rule would change:
Weighted selection based on wage levels
Under the proposed rule, H-1B registrations would be assigned a specific number of entries in the cap lottery based on the wage level of the offered position, as classified under the Department of Labor’s Occupational Employment and Wage Statistics (OEWS). Employers would be required to certify the wage level at registration.
Specifically:
- Level IV = four entries
- Level III = three entries
- Level II = two entries
- Level I = one entry.
Accordingly, if the rule is implemented as proposed, all beneficiaries would remain eligible to be selected in the random H-1B cap lottery, but lower-wage offers would statistically have a lower chance of selection. Additionally, if a beneficiary will be placed in multiple locations, the lowest applicable wage level will be applied.
This system would apply to both the regular cap, as well as the master’s cap (spots specifically reserved for foreign nationals who have obtained an advanced degree or higher from a U.S. college or university).
The proposed rule would also continue to only count each beneficiary once in the lottery, regardless of how many employers submit registrations on their behalf.
Prevailing wage levels
The proposed selection method does not modify how prevailing wage levels are determined by the Department of Labor (DOL).
However, President Donald Trump instructed the Secretary of Labor to “initiate a rulemaking (process) to revise the prevailing wage levels” as part of the “Restriction on Entry of Certain Nonimmigrant Workers” proclamation released in mid-September.
When will the final rule be released?
It is important to note that the proposed rule will not take effect as published.
As mentioned above, the proposed rule is subject to a 30-day comment period, and it will not take effect until comments are reviewed, and a final version is re-published in the Federal Register. It would likely be published and implemented for the FY2027 H-1B cap season that would begin in March 2026. However, the rule may likely face challenges in federal court.
Why is the government proposing these changes?
In its proposed rule, DHS said the revamp is intended to realign the H‑1B program with Congress’s original purpose: helping employers address shortages in specialized, highly skilled roles, and that under the current lottery, petitions for higher‑paid workers have been consistently underrepresented in recent years. The rule contends that pay level is a reasonable stand‑in for skill and aims to encourage higher wage offers while still preserving opportunities for entry‑level hires.
What, if anything, should employers do to prepare?
Remember, DHS has only proposed the rule so far. Final details may change depending on the final rule text and effective dates, and litigation outcomes could shift quickly. The biggest thing that employers can do right now is monitor updates and coordinate closely with immigration counsel to adjust strategies once the rule is finalized (if and as needed).
Should the rule become published and effective, it will be important to evaluate the FY2027 H-1B candidate pipeline early and identify which roles and candidates may benefit from a weighted lottery system. Eventually, employers will want to benchmark roles and decide whether the business can offer higher wage levels, align internal job leveling and titles, and get internal compensation approvals finalized before registration opens. Employers should also consider consulting with immigration counsel to review other visa options for candidates who may be disadvantaged by the new lottery rules, and/or to consider early green card sponsorship where appropriate, especially for roles that are hard to fill.
What is the H-1B cap lottery?
A legislatively established statutory cap limits approvals of new H-1B petitions in a fiscal year to 85,000, with 20,000 of that total reserved for foreign nationals who have obtained an advanced degree or higher from a U.S. college or university.
A random-computer generated lottery is held when demand for an H-1B cap-subject visa exceeds supply in a given fiscal year, which is almost always the case.
The H-1B nonimmigrant visa category is available for U.S. companies to fill a “specialty occupation” with a qualified foreign national. A specialty occupation is one that generally requires a bachelor’s degree or higher, or its equivalent, as a minimum, entry-level credential.
The attorneys at Garfinkel Immigration Law Firm will alert clients as more information becomes available and circumstances evolve related to the final rule.