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On December 29, 2025, USCIS announced a final rule, effective 60 days from publication, that will replace the random selection method for H-1B "Cap" lottery registrations with a new, weighted method that focuses on the candidate's intended compensation level. The new method will be used for the upcoming FY2027 H-1B lottery (unless a federal court intervenes).
Background
Under the old selection method, 85,000 H-1B visas were allocated through an annual, randomized electronic lottery that gave no preference to any candidate (other than a set-aside of 20,000 H-1Bs for candidates who earned U.S. advanced degrees). All candidates theoretically had the same chance of being selected regardless of their job title, industry, seniority, or compensation level.
Weighted Method for FY2027
Under the new method put forth in the final rule, employers will be required to disclose on the FY2027 H-1B electronic lottery registration form each candidate's (1) intended salary, (2) area of employment, and (3) job category code from the U.S. Department of Labor's Occupational Employment and Wage Statistics (OEWS) index. This information will determine which of the following OEWS Wage Levels corresponds to the candidate's role:
- Level I: Entry Level
- Level II: Qualified
- Level III: Experienced
- Level IV: Fully Competent
Registrations will be entered into the lottery as follows: once for Wage Level I roles, twice for Wage Level II roles, thrice for Wage Level III roles, and four times for Wage Level IV roles. The result weighs the lottery selection process in favor of those candidates who are higher on the compensation scale relative to other workers in the same OEWS job category.
Multiple Work Locations
Under the new rule, employers are expected to select the highest Wage Level that comes closest, without exceeding, the offered salary. However, if the H-1B candidate will work in multiple geographic locations, employers are required to select the lowest Wage Tier that meets the preceding criteria.
Example 1: Employer wishes to sponsor a Software Engineer based in Montgomery, AL at an annual salary of $130,000. The proper OEWS code for this role is 15-1252.00 – Software Developers. The Wage Level IV salary for Software Developers in Montgomery is $126,630.00, and this amount is nearest to the offered salary without exceeding it (as there are no Wage Levels/salaries above IV). Employer would therefore submit the H-1B registration for this candidate at a Wage Level IV, and it would receive four entries in the lottery.
Example 2: Same facts as above, but the candidate will work in Montgomery, AL and Boston, MA. The Wage Level I salary for Software Developers in Boston is $107,557.00, and the Wage Level II salary is $131,082.00. The Wage Level I salary comes nearest the $130,000.00 offered salary without exceeding it. As such, the Software Engineer role is a Wage Level I for the Boston worksite, but Wage Level IV for the Montgomery worksite. The new USCIS method requires Employer to submit the H-1B registration as a Wage Level 1, and it will only be entered in the lottery once.
Multiple Employers
In the event multiple employers submit a registration on behalf of the same candidate, USCIS will only enter the candidate in the lottery for the number of times corresponding to the lowest Wage Level listed among all registrations.
Example 3: Company A submits an H-1B registration for Employee listing the offered role as Wage Level III Software Developer. Company B submits its own, separate H-1B registration for Employee listing the offered role as Wage Level I Software Quality Assurance Analyst and Tester. Employee will only be entered in the lottery once on account of the Wage Level 1 registration from Company B.
USCIS expects employers to furnish evidence supporting their Wage Level selections for any registrations that are selected in the lottery and for which H-1B petitions are filed. USCIS may deny or revoke any petitions where the agency determines that the employer supplied inaccurate or misleading information to either increase the chance of lottery selection or to reduce the amount the employer will need to pay the sponsored employee once the H-1B petition is approved.
Further, USCIS may take adverse action against petitions that contain information inconsistent with employer representations about the offered roles made in the related lottery registrations. USCIS acknowledges, however, that some changes to the terms of employment may be bona fide in nature. USCIS will expect employers to document all such changes thoroughly.
OGC encourages clients to collaborate with experienced immigration counsel to ensure that all H-1B "cap" cases to be filed in 2026 are thoroughly vetted for likelihood of selection and are prepared correctly.
GC provides outside general counsel services to companies of all sizes, offering project-based support, subject-matter expertise, and day-to-day GC services through a team of partner-level business attorneys. For more information visit: Outside General Counsel Corporate Legal Services.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
