DHS Proposes Rule to Increase H-1B Lottery Selection Odds for Higher-Paid Workers

On September 24, 2025, the Department of Homeland Security (DHS) issued a proposed rule that would change the current selection process for selecting H-1B visa petitions subject to the annual numerical limits established by the Immigration and Nationality Act.

Under the proposed rule, the current random lottery system would be replaced with a wage-based selection process that prioritizes the selection of H-1B workers offered higher salaries by sponsoring employers.

The goal is to better align the H-1B program with U.S. labor market needs by increasing the chances of selection for higher-paid, and presumably higher-skilled, foreign workers. This change aims to reduce the potential for abuse in the system, discourage mass low-wage registrations, and ensure that the most economically valuable positions are filled through the H-1B program.

What may change

Currently, the U.S. government selects H-1B visa petitions through a randomized lottery system due to the annual numerical cap on available visas. Employers first submit electronic registrations for each prospective H-1B worker during a designated registration period, typically held in March. Because the demand for H-1B visas consistently exceeds the supply, the U.S. Citizenship and Immigration Services (USCIS) conducts a lottery to determine which petitions can proceed with applying for H-1B visas.

There are two separate caps under the H-1B program: the regular cap of 65,000 visas and an additional 20,000 visas reserved for individuals who hold advanced degrees from U.S. institutions (commonly referred to as the master’s cap). All registered beneficiaries, including those with U.S. advanced degrees, are first entered into the regular cap lottery. After 65,000 are selected, those with U.S. master’s degrees who were not chosen in the initial round are entered into a second lottery for one of the 20,000 advanced degree slots.

This current system does not prioritize applicants based on wage levels, qualifications, or skills. Selection is purely random as long as the minimum eligibility requirements are met.

However, the Department of Homeland Security (DHS) is proposing changes that would shift the selection process to favor higher-paid workers.

New Proposal

The newly proposed regulation seeks to introduce a weighted lottery system. Under this new system, H-1B petitions associated with higher Occupational Employment and Wage Statistics (OEWS) wage levels would receive multiple entries into the selection pool, thereby increasing their chances of selection, while still allowing lower-wage level positions to remain in consideration.

When a lottery is conducted, each unique H-1B beneficiary will be entered into the selection pool a number of times based on the Occupational Employment and Wage Statistics (OEWS) wage level that the offered wage meets, or exceeds for the relevant Standard Occupational Classification (SOC) code, and the intended area of employment.

How would this work in practice?

Level IV wages would receive 4 entries
Level III would receive 3 entries
Level II would receive 2 entries and
Level I would receive 1 entry

While each beneficiary can only be selected once, those at higher wage levels have improved odds due to their multiple entries. This weighted lottery system would also apply to the advanced degree exemption after the regular cap has been reached.

Employer Required Information for Electronic Registration

Employers would be required to provide the following information on the electronic registration form for the upcoming H-1B lottery:

The SOC code for the proffered position
The area of intended employment (if multiple worksites or multiple positions, the lowest equivalent wage level applies)
The highest OEWS wage level that the proffered wage meets or exceeds for that SOC and location
Passport or travel document information for the beneficiary (each beneficiary can only be registered under one valid passport/travel document).

Beneficiary-Centric Approach with “Lowest Wage Level” Assignment

If multiple employers submit registrations for the same beneficiary at different wage levels, USCIS will assign the beneficiary to the lowest wage level reported before applying the weighted lottery. For instance, if one employer registers the beneficiary at Level IV and another at Level I, the beneficiary will be treated as Level I, receiving only one entry. This approach is designed to prevent abuse of the system by closing the loophole where artificially inflated wage levels could be used to gain an advantage in the selection process.

Submitted H-1B Petitions Must Exactly Match Electronic Registration & LCA Details

An H-1B petition will only be considered valid if it is based on a selected registration and matches the electronic registration and accompanying Labor Condition Application (LCA) exactly. This means that key details such as the Standard Occupational Classification (SOC) code, wage level, and job location must all be identical. Petitioners must also provide supporting documentation justifying the wage level determination as of the date of registration.

Only limited changes will be allowed at the petition stage, such as updates due to legal name changes, passport renewals, or location changes that remain consistent with the original, bona fide job offer and wage level.

DOL Prevailing Wage Rules May Soon Change

The proposed regulation does not modify how the Department of Labor (DOL) determines prevailing wage levels. It uses the existing Occupational Employment and Wage Statistics (OEWS) wage levels to weigh the odds of selection in USCIS’s H-1B lottery process.

However, President Trump’s recent proclamation restricting the entry of certain nonimmigrant workers directs the DOL to pursue separate rulemaking, which could result in higher prevailing wage levels to align with the administration’s policy objectives.

Future Impact: Fewer Visas for Entry-Level Positions

The proposed system is expected to substantially reduce the number of H-1B visas awarded to entry-level positions. Each year, approximately 10,000 fewer visas would go to jobs classified at Wage Level I. In contrast, higher wage levels would see notable increases in visa allocations, with projected gains of 2,400 for Level II, 4,500 for Level III, and 3,200 for Level IV roles. This shift reflects a broader policy goal of prioritizing higher-skilled, higher-paid positions within the H-1B program.

Next Steps in the Rulemaking Process

The public will have a 30-day window to submit written comments on the proposed rule and 60-days to provide feedback on related information collection requirements, such as new data fields in the electronic registration form.

After the comment period closes, USCIS must review the public comments, draft a final version of the rule, obtain approval from the Office of Management and Budget (OMB), and then publish the final regulation.

High Likelihood for Litigation

The likelihood of litigation against the proposed changes is high. When the Trump administration previously attempted to overhaul the H-1B selection process, the rule faced immediate legal opposition.

A lawsuit resulted in a preliminary injunction, and ultimately, a federal court vacated the final rule, forcing the Department of Homeland Security (DHS) to withdraw it. This occurred in the case Chamber of Commerce of the United States of America et al. v. United States Department of Homeland Security, et al., No. 4:20–cv–07331 (N.D. Cal. March 19, 2021). Given this precedent, similar legal challenges are expected if the new rule advances.

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