The U.S. Department of Homeland Security (DHS) has issued a final rule that will fundamentally reshape the H-1B visa program, taking effect on February 27, 2026. This new rule introduces a weighted selection process for H-1B registrations, moving away from the traditional random lottery system. Under the final rule, the odds of selection for each registration will be determined by the highest Occupational Employment and Wage Statistics (OEWS) wage level that the offered wage equals or exceeds for the relevant Standard Occupational Classification (SOC) code and geographic area of intended employment.
The goal of this weighted selection process is to prioritize higher-skilled and higher-paid foreign workers, ensuring that the H-1B program better serves the needs of the U.S. labor market. Employers must now provide detailed and accurate information during the registration process, including the SOC code, geographic area, and the OEWS wage level that corresponds to the offered wage. This shift means that the registration process is no longer just about entering a lottery; it is about demonstrating the value of the job offer through employment and wage statistics, and aligning with the new rule’s focus on occupational employment and wage data.
By leveraging wage statistics and labor market data, the DHS aims to allocate H-1B visas more strategically, increasing the odds for higher paid and higher skilled workers while maintaining opportunities for a broad range of occupations. Employers should be aware that the accuracy of the information submitted during the registration process will directly impact their chances in the selection process, as the new rule is designed to reward those offering competitive wages in line with prevailing labor standards.
The H-1B visa program facilitates the temporary employment of foreign workers for specialty occupations or distinguished merit in fashion modeling. Specialty occupations demands theoretical and practical application of a body of highly specialized knowledge; and attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.
Congress sets an annual limit of 65,000 foreign workers to receive initial H-1B visas or status for each fiscal year (FY). However, certain petitions are exempt from this limit. Notably, the annual exemption for H-1B workers with a qualifying U.S. master’s or higher degree is 20,000.
U.S. Citizenship and Immigration Services (USCIS) traditionally used a random selection process during years of high demand to allocate H-1B petitions up to the annual cap. To improve this process, the DHS introduced a registration requirement for H-1B cap-subject petitions starting with the FY 2021 cap season in 2020.
Later, in February 2024, DHS implemented a beneficiary-centric selection process for H-1B registrations to ensure each beneficiary has the same chance of being selected. Registrations are counted based on the number of unique beneficiaries, regardless of the number of registrations submitted for each.
DHS has updated its regulations concerning how USCIS selects H-1B registrations for unique beneficiaries filing H-1B cap-subject petitions (or petitions during any suspension of the registration requirement). This final rule implements a weighted selection process that generally prioritizes higher-skilled and higher-paid foreign workers while preserving opportunities for employers to secure H-1B employees across all wage levels, aligning with the congressional intent of the H-1B program. The rule will take effect on February 27, 2026.
Per this new rule, when random selection is required because USCIS receives more registrations (or petitions) than USCIS projects to be needed to meet the numerical allocations, USCIS will conduct a weighted selection among the registrations for unique beneficiaries (or petitions).
Under this process, registrations for unique beneficiaries or petitions are assigned an OEWS wage level and entered into the selection pool with weighted entries: those at wage level IV receive four entries, wage level III registrations receive three entries, wage level II registrations receive two entries, and wage level I registrations receive a single entry. This weighting system increases the chances of selection for beneficiaries offered higher wages, reflecting their alignment with higher skill and experience levels as defined by the Department of Labor’s wage statistics.
Note that each unique beneficiary will be counted only once in the numerical allocation projections, regardless of the number of registrations submitted for that beneficiary or the number of times the beneficiary is entered into the selection pool.
OEWS Wage Level Selection and SOC Code Disclosure Requirements
For the weighting and selection process, registrants must select the highest OEWS wage level box—“wage level IV,” “wage level III,” “wage level II,” or “wage level I”—that corresponds to the beneficiary’s offered wage, which must generally equal or exceed the wage for the relevant Standard Occupational Classification (SOC) code and geographic area of intended employment, as determined by the Department of Labor’s Occupational Employment and Wage Statistics (OEWS) data.
Additionally, registrants are required to provide the appropriate SOC code for the position offered and specify the area of intended employment for the OEWS wage level chosen on the registration form, along with any other information mandated by the electronic registration system.
Wage Level for Non-OEWS Survey & Wage Range
For registrants using a prevailing wage source other than the OEWS survey, if the offered wage is below the corresponding Level I OEWS wage, the registrant must select the “wage level I” box on the registration form. The offered wage to the beneficiary serves as the basis for determining the appropriate wage level.
In cases where the offered wage is presented as a range, the registrant should select the OEWS wage level that the lowest wage in that range meets or exceeds. This approach ensures fairness and prevents employers from artificially increasing a beneficiary’s chances of selection by inflating wage offers.
Lowest Applicable Wage Level Rule for Multiple Work Locations or Positions
The electronic registration system requires the registrant to specify only one work location. If the H-1B beneficiary is expected to work at multiple locations or hold multiple positions (in cases where the registrant acts as an agent), the registrant must select the wage level corresponding to the lowest equivalent OEWS wage level among those locations or positions. The location associated with this lowest wage level must be listed as the area of intended employment. Since different locations or positions may correspond to different wage levels, using the lowest wage level ensures fairness and prevents manipulation of the weighted selection process.
For instance, if a beneficiary is offered a position as a software developer (SOC code 15-1252) with a proffered wage of $175,000 and is expected to work in both Sacramento, California—where this wage exceeds wage level IV—and San Francisco, California—where the highest wage level met by this wage is wage level II—the registrant must select the “wage level II” box on the registration form and designate San Francisco as the area of intended employment. This requirement to select the lowest applicable wage level across multiple work locations or positions aims to prevent manipulation of the weighted selection process by discouraging employers from inflating wage levels through strategic choices of location or job roles, thereby preserving the integrity of the selection system.
Registrant Obligations in the Absence of Available OEWS Wage Data
Certain occupations lack current OEWS prevailing wage information on the Department of Labor’s Office of Foreign Labor Certification (OFLC) Wage Search website. In such cases—where either the four wage levels for the occupational classification are unavailable or wage data for the intended geographic area do not exist—registrants must follow Department of Labor (DOL) guidance on prevailing wage determinations (PWDs) to select the appropriate OEWS wage level for registration purposes. According to the new rule, registrants should be able to identify the correct SOC code for the offered position, as all petitioners are required to specify this SOC code on the Labor Condition Application (LCA), even when no applicable wage level data are available or the OEWS survey is not the prevailing wage source for the LCA.
USCIS to Assign Lowest OEWS Wage Level Across Multiple Registrations
USCIS will assign each unique beneficiary an OEWS wage level based on the lowest OEWS wage level among all registrations submitted on their behalf. If only one registration is submitted for a beneficiary, USCIS will assign that beneficiary the OEWS wage level indicated by the registrant according to the form instructions. For example, if a beneficiary has registrations submitted at both Level I and Level IV wage levels, USCIS will assign the beneficiary to Level I for the weighted selection. This approach is designed to discourage multiple registrants from submitting inflated wage level registrations to unfairly boost a beneficiary’s chances of selection.
Weighted Selection Mechanism Based on OEWS Wage Levels
If more unique beneficiaries had registrations properly submitted on their behalf during the annual initial registration period than projected as needed to fulfill the applicable numerical allocation, USCIS would enter each unique beneficiary into the selection pool using a weighted system. Specifically, a beneficiary assigned to wage level IV—the highest wage level—would be entered four times, maximizing their entries in the selection pool. Beneficiaries assigned to wage level III would be entered three times, those at wage level II twice, and those at wage level I once. The random selection process would be computer-generated, ensuring that each unique beneficiary is selected only once, regardless of how many registrations were submitted or how many times they appear in the selection pool.
Following this, USCIS would apply the same weighted selection process to fulfill the advanced degree exemption allocation.
If a beneficiary is selected, all registrants who properly submitted a registration on that beneficiary’s behalf will be notified of the selection. Each of these registrants will then be eligible to file an H-1B petition for that beneficiary during the designated petition filing period.
H-1B Cap-Subject Petition Filing Following Registration
Unless registration is suspended, a petitioner would be eligible to file an H-1B petition based on a valid selected registration. An H-1B petition filed on behalf of a beneficiary must include and be supported by the same identifying and position information provided in the selected registration, including the SOC code. The petition must also offer a wage that equals or exceeds the prevailing wage corresponding to the OEWS wage level indicated in the registration for the specific SOC code and geographic area of intended employment.
How Are Multiple Work Locations Treated at the Registration Versus Petition Stage?
DHS recognizes that a beneficiary may have multiple work locations. While the electronic registration requires the registrant to list only one work location—the one corresponding to the lowest equivalent wage level, which is designated as the area of intended employment—the subsequent petition must include all the addresses where the beneficiary will actually work. If the area of intended employment listed in the registration is not included in the petition, USCIS may, at its discretion, determine that a change in the area(s) of intended employment is allowable, provided the change aligns with a bona fide job offer at the time of registration.
Can the Area of Intended Employment Change After H-1B Registration Selection?
As previously mentioned, any H-1B petition filed after a registration has been selected must include and be supported by the same identifying and position information provided in the selected registration. The petition must also offer a wage that equals or exceeds the prevailing wage corresponding to the OEWS wage level indicated in the registration for the relevant SOC code and geographic area of intended employment. However, DHS acknowledges that legitimate changes to the intended work location may occur between registration and petition filing. Therefore, USCIS may, at its discretion, allow a change in the area(s) of intended employment, provided it aligns with a bona fide job offer that existed at the time of registration. For example, an employer with multiple offices might assign the beneficiary to a different office than initially planned, as long as the wage offered meets or exceeds the same equivalent wage level for the new location as indicated on the registration.
DHS also recognizes that petitions may list multiple work locations beyond the single intended location specified in the registration, particularly when beneficiaries work at multiple sites or when registrants act as agents required to list the location with the lowest corresponding wage level. Using the earlier example of a beneficiary working in both Sacramento and San Francisco, where the registration lists only San Francisco as the area of intended employment, the petition may include both locations without this being considered a “change in the area(s) of intended employment.”
What Does USCIS Mean by a “Bona Fide Job Offer” at the Registration Stage?
Under the current registration system, petitioners must already certify that each registration they submit represents a legitimate job offer. This new rule clarifies that a valid registration must indeed represent a bona fide job offer. Consequently, each registrant should be able to identify the appropriate SOC code and wage level for the offered position at the registration stage, considering the experience requirements for the position, as these are crucial factors in determining the correct wage level. These requirements are essential for program integrity and align with existing job offer requirements.
Can USCIS Deny Subsequent Petitions Filed to Unfairly Increase Selection Chances?
The new rule authorizes USCIS to deny any new or amended petition filed by the petitioner or a related entity on behalf of the same beneficiary if it determines that the filing was intended to unfairly increase the beneficiary’s chances of selection during the registration or petition selection process. This includes instances where the proffered wage is lowered to a level corresponding to a wage tier below that indicated in the original registration or petition.
Similarly, if a new or amended petition maintains the same proffered wage but changes the work location such that the wage now corresponds to a lower OEWS wage level for the new location than what was indicated on the registration, USCIS may consider this change when determining if the petition was intended to unfairly increase the beneficiary’s chances of selection. Conversely, USCIS would not deny a new or amended petition solely due to a different proffered wage or location, provided the wage continues to meet or exceed the same OEWS wage level as listed on the original registration. In making such determinations, USCIS will evaluate the totality of circumstances surrounding the petition.
Are Approved New or Amended petition H-1B Petitions Immune From Wage-Level Scrutiny?
If a new or amended petition has already been approved, the proposed regulation grants USCIS the authority to revoke the petition upon notice if it determines that the filing was intended to unfairly increase the beneficiary’s chances of selection during the registration or petition selection process. This could include actions such as lowering the proffered wage to a level corresponding to a lower wage tier than that indicated on the registration or the original petition if the registration process was suspended. USCIS may revoke petitions if it finds evidence of manipulation, including submission of inaccurate wage or occupational information aimed at improving selection odds in the H-1B lottery. However, USCIS will not revoke approval solely because the proffered wage differs, provided it meets or exceeds the same OEWS wage level listed on the original petition.
Similar to USCIS’s definition of “related entity” for the prohibition on multiple cap-subject H-1B filings, under the new rule, a “related entity” may encompass a parent company, subsidiary, affiliate, or other companies that are not strictly linked through formal corporate ownership or control. Factors that USCIS may consider when determining relatedness include familial relationships, geographic proximity of business locations, leadership and management structures, employment histories, similarity of work assignments, and substantially overlapping supporting documentation. USCIS will evaluate the totality of circumstances to decide whether a new or subsequent petitioner qualifies as a “related entity.”
Preparation for the H-1B Season
With the final rule set to transform the H-1B registration process, employers must take proactive steps to prepare for the upcoming H-1B season. The first priority is to thoroughly review the new rule and understand how the weighted selection process will affect their H-1B registrations. Employers should use the DOL’s OEWS data to determine the correct wage level for each beneficiary, ensuring that the offered wage meets or exceeds the highest applicable OEWS wage level for the relevant SOC code and geographic area.
It is also essential to gather and submit accurate prevailing wage data during the registration process, as this information will be scrutinized during both registration and petition stages. Employers must be prepared to verify that the wage level indicated in the registration matches the wage offered in the H-1B petition, and that all supporting documentation aligns with the requirements of the new rule.
Additionally, employers should stay informed about potential legal challenges or litigation that could impact the implementation of the weighted selection process. By understanding the new requirements and maintaining compliance with the final rule, employers can improve their chances of successfully selecting higher-skilled and higher-paid foreign workers through the H-1B program. Early preparation, careful documentation, and a clear understanding of the new process will be key to navigating the evolving landscape of H-1B petitions and maximizing the odds of selection for their beneficiaries.
Conclusion: Strategic H-1B Planning Is No Longer Optional—It’s Essential
The introduction of the H-1B weighted selection process effective February 27, 2026, marks one of the most consequential shifts in the H-1B cap system in decades. While USCIS continues to emphasize fairness through a beneficiary-centric model, the new wage-based weighting fundamentally reshapes how selection odds are calculated—placing greater scrutiny on wage levels, SOC code accuracy, work locations, and bona fide job offers at the registration stage.
For employers, this means early, deliberate compliance planning is no longer optional. Wage level selection, multiple worksite analysis, and internal consistency between registration, LCA, and petition filings will now directly affect selection probability and post-selection adjudications. Offering a higher equivalent wage level—where the wage offered exceeds the standard wage level indicated in the LCA—can increase the probability of selection in the weighted lottery. Attempts to game the system—through inflated wages, strategic location swaps, or related-entity filings—carry serious risks, including petition denial or revocation even after approval.
For foreign professionals, understanding how OEWS wage levels influence selection odds is critical when evaluating job offers and employers during the cap process. Higher wages may improve lottery chances, but only when supported by legitimate job duties, correct SOC codes, and consistent documentation.
In this new landscape, the H-1B cap is no longer just a lottery—it is a compliance-driven, data-validated selection system. Employers and employees who adapt early, document carefully, and align strategy with regulatory intent will be best positioned to succeed in the evolving H-1B program.
If you have any questions regarding the H-1B weighted lottery rule or need personalized assistance with the selection process, please reach out to our Raleigh, NC office. Our team is ready to provide expert guidance tailored to your specific needs.