On July 17, 2025, the U.S. Department of Homeland Security (DHS) submitted a proposed rule to the Office of Management and Budget (OMB) for review. The proposed DHS Rule to Change H-1B Cap Selection is titled “Weighted Selection Process for Registrants and Petitioners Seeking to File Cap-Subject H-1B Petitions.”
The H-1B visa program, widely utilized by the technology sector to hire skilled foreign professionals, is subject to an annual statutory cap of 85,000 visas. This total includes 20,000 slots specifically set aside for individuals holding a U.S. master’s degree or higher. Certain employers, such as universities and research institutions, are eligible to file cap-exempt H-1B petitions.
Each year, a random lottery is conducted to select from among the cap-subject registrations. Employers whose entries are selected in the lottery are then permitted to file full H-1B petitions to sponsor the chosen foreign workers.
The proposed rule may significantly alter the annual H-1B cap selection process. While specific details remain confidential until the rule is published in the Federal Register, it is expected that the proposal would introduce a weighted selection process—giving preference to H-1B registrants who meet certain criteria, such as higher wages or advanced educational qualifications. This could either supplement or replace the current random lottery system used to allocate H-1B visas.
This is not DHS’ first attempt to modify the H-1B selection system. In the final days of the Trump Administration, a regulation was finalized that would have prioritized H-1B cap numbers based on the Department of Labor’s four-tier prevailing wage system. Under that rule, visa numbers would have been distributed first to those offered Level IV wages, then in descending order through Levels III, II, and I. A computerized lottery would only have been used if the number of applicants within a wage level exceeded available visa slots. However, this rule was postponed at the start of the Biden Administration and ultimately struck down by a federal court before it could be implemented.
The proposed DHS Rule to Change H-1B Cap Selection is currently unclear whether the newly proposed rule mirrors the 2021 regulation or introduces a new framework entirely.
What Comes Next
The proposed rule is now under review by the OMB, which typically has 90 days to complete its evaluation, though this period may be shorter or longer. Once OMB review is complete, the rule will be published in the Federal Register and opened for public comment, usually for a 60-day period. DHS is obligated to consider public input before finalizing the rule. After finalization, the rule will again be published with an effective date, typically 30 to 60 days later.
If you have any questions about this update, please contact one of our offices in Chicago, IL, Naperville, IL, Raleigh, NC, or Clark, NJ, for guidance.
At HSD Immigration Lawyer, we specialize in complex employment– investment- and family-based immigration matters.