On September 24, 2025, the Department of Homeland Security (DHS) published a Notice of Proposed Rulemaking (NPRM) entitled "Weighted Selection Process for Registrants and Petitioners Seeking to File Cap-Subject H-1B Petitions." The NPRM proposes to weight H-1B lottery registrations based on the offered salary.
Comments on the NPRM must be submitted by October 24, 2025, and can be submitted through this link.
Background
The H-1B "cap" or "quota" is a limitation on the number of "new" H-1B petitions that can be approved in a fiscal year. The current quota is 85,000, of which 20,000 are reserved for individuals who hold a United States master's degree or higher.
For over a decade, there have been far more petitions filed than H-1B numbers available. As a result, USCIS historically has performed a computer-generated lottery to select which H-1B submissions would be processed. Since 2020, USCIS has utilized an electronic H-1B registration system. Employers now must submit an electronic registration to USCIS for a random selection in the H-1B cap lottery. If selected, the employer may then submit a full H-1B petition to USCIS. Additional information on the H-1B registration system can be found here.
Proposed Changes
Instead of a random selection process, the proposed rule would modify the H-1B lottery selection process to weight each registration based on the wage level for the offered salary. Those registrations with an offered wage at or above the Department of Labor's (DOL) Level IV prevailing wage for the occupation at the intended worksite would receive four lottery entries. H-1B registrations with an offered wage at or above Level III would receive three entries; those at Level II would receive two entries; and Level I wage registrations would receive one entry.
This is a different method from that in the similar rule finalized in 2021, which was ultimately vacated by the US District Court for the Northern District of California and subsequently withdrawn without ever being implemented. The 2021 rule involved ranking such that selections were made first from the wage Level IV entries, followed by selections from the wage Level III entries, and so on. This would have effectively precluded selection of any wage Level I (and probably Level II) entries. In contrast, the new rule weights the entries based on the wage level. The wage Level IV entries (with four entries) will have a better chance of selection than the lower wage level registrations with the corresponding number of entries, without precluding selection of the lower-level entries altogether.
The weighting based on salary is for purposes of registration only and does not affect the prevailing wage level analysis for the required Labor Condition Application (LCA). In other words, a salary might be at the Level IV wage for registration purposes, but the LCA might properly indicate a lower prevailing wage level based on the requirements of the offered role.
The proposed rule also allows USCIS to deny or revoke subsequently filed amended H-1B petitions if USCIS determines that the amended petition filing reflects a lower wage level, revealing an attempt to unfairly increase the chance of selection.
DHS's Rationale for the Proposed Change
The NPRM asserts that the current random selection process does not align with Congressional intent to prioritize highly skilled workers, claiming that lower wage levels dominate H-1B selections. The proposed rule incentivizes employers to offer higher wages, which would typically result in H-1B petitions for more skilled roles, improving program integrity and economic impact.
New Information Required for H-1B Registrations
In addition to the information already required to prepare an H-1B registration, employers will now need to provide the following:
- the wage level that the proposed salary equals or exceeds (Level I, II, III, or IV);
- the Standard Occupational Classification (SOC) code appropriate to the intended position; and
- the area of intended employment for which the wage level was established.
Multiple Wage Levels
Where multiple prevailing wages apply, such as with two work locations or multiple employer registrants, USCIS will weight the registration based on the lowest wage level. For example, if the proposed salary meets the Level IV wage for one worksite but only the Level II wage for a second worksite, the registration will be weighted as Level II, receiving two entries. Similarly, if two different employers register the same foreign national beneficiary, and one salary meets the Level III wage while the other satisfies only the Level I wage, the registration will be weighted as Level I, receiving one entry.
Conclusion
If this proposed rule becomes final, it will significantly alter the H-1B lottery selection process, benefiting those with offers from companies who can afford higher wages, and possibly disadvantaging those intending to work for smaller companies and nonprofits.
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