New Proposed Rule Re-Evaluates Selection Process for H-1B Visa Workers

A new Department of Homeland Security (DHS) proposed rule known as RIN 1615-AD01 “Weighted Selection Process for Registrants and Petitioners Seeking to File Cap-Subject H-1B Petitions,” seeks to make radical changes to the selection process for new H-1B specialty occupation cap-subject visas.

On Thursday last week, the proposed rule was quietly sent to the White House Office of Information and Regulatory Affairs for review.

If approved, USCIS will publish the proposed rule in the Federal Register for public comment. Once the comment period has closed, USCIS will review the public comments and submit a final rule in the Federal Register with a future effective date.

What is the H-1B Visa Program

The H-1B visa program allows U.S. employers to temporarily hire foreign workers in specialty occupations that require specialized knowledge and at least a bachelor’s degree.

Each fiscal year, U.S. Citizenship and Immigration Services (USCIS) conducts a random lottery to select enough applicants to fill the government’s annual H-1B visa quota of 85,000 visas—65,000 for regular applicants and 20,000 allocated for workers with advanced degrees from U.S. institutions.

Due to high demand, a lottery system is used to randomly select from the pool of eligible registrations submitted by employers each spring. Selected applicants can then file full H-1B petitions for USCIS adjudication.

What is the Proposal Seeking?

While the proposed rule is still under review and is not publicly available, it is believed that the government intends to replace the selection process from a randomized lottery to a new system that gives priority to H-1B workers with employers willing to pay the highest-level wages based on their job location and occupation.

The new rule could require employers to disclose information about how much they plan to pay each worker during the online registration process.

USCIS could then consider this information selecting from eligible registrations offering Level IV wages first, then moving to Level III wages and so on. If the number of applicants within any wage-level exceeds the number of available visas, the government could then conduct a lottery occur to select applicants within that wage level.

This proposal, which was originally floated during President Trump’s first term in office, seeks to re-evaluate the issuance of U.S. work visas toward a merit-based system by prioritizing higher wages for H-1B visa applicants. The goal of the Trump administration has been to attract top talent, protect American jobs, and ensure visas go to highly skilled workers in critical roles. The proposal’s supporters believe this new system could curb misuse by discouraging low-wage hiring, and ensuring visas go to those with the most experienced—who are typically the highest paid.

On the other hand, if this new system goes into effect, the chances of H-1B selection for entry-level workers and those offered lower salary would diminish. Companies would also bear the brunt of the impact with some being forced to raise salaries and higher fewer foreign workers.

Conclusion

If passed, the proposed rule could fundamentally reshape the H-1B visa process by prioritizing higher wages, potentially benefiting highly skilled workers while limiting opportunities for entry-level talent and smaller employers.

This is a developing story.

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