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On September 24, 2025, the U.S. Department of Homeland Security (DHS) published a proposed rule that, if implemented, would significantly change the selection process for the annual H-1B lottery. The proposed rule would replace the current random selection process with a weighted wage-based selection process that favors higher-skilled and higher-paid workers. This is the latest H-1B related immigration development following the recent presidential proclamation requiring a $100,000 H-1B entry fee for those entering the upcoming H-1B lottery.
Background
New H-1B visas are limited to 65,000 annually with an additional 20,000 reserved for foreign nationals holding advanced degrees earned from U.S. universities or colleges. The current system requires employers electronically register each applicant to be eligible for selection in the lottery by inputting basic biographic data into the registration system. If the number of registrations exceeds the number of available H-1B numbers, U.S. Citizenship & Immigration Services (USCIS) conducts a random selection lottery.
Proposed Changes
Under the proposed rule, employers would be required to include wage information in the initial registration process. Based on the weighting process which gives more entries in the lottery selection pool to higher wage levels some registrations would have a much higher likelihood of being selected in the lottery. This change would inevitably shift the odds in favor of the highest-paid foreign workers. According to the proposed rule, wage levels would be weighted as follows:
- Wage Level 4 registrations would be entered four times.
- Wage Level 3 registrations would be entered three times.
- Wage Level 2 registrations would be entered twice.
- Wage Level 1 registrations would be entered once.
Once selected, employers would be required to file petitions with evidence supporting the wage level selected at registration and maintain the same wage level or higher as indicated at registration. USCIS will be able to deny or revoke petitions if registration information changes or if it determines an employer attempted to manipulate wage levels to boost selection odds.
Impact & How to Prepare
This proposed rule is a significant departure from the current H-1B lottery process. If implemented, it will significantly change the likelihood of selection for certain employees and roles. Specifically, entry-level workers with less experience and lower wage level positions would have reduced chances of selection compared to higher wage level workers.
Employers can start preparing for the potential impact of this rule by reviewing wage levels for potential H-1B positions and considering wage adjustments where possible to improve odds of selection. Additionally, employers should consult with immigration counsel to review alternative visa strategies in the face of reduced selection probability under the new system.
The public comment period on the proposed rule will close on October 25, 2025. If finalized, implementation would likely apply to the fiscal year (FY) 2027 H-1B cap season beginning March 2026.
MVA is closely monitoring this proposed rule change and will continue to provide updates as they become available.
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