Introduction
The H-1B visa has long been a cornerstone of U.S. immigration, enabling American companies to employ highly skilled foreign professionals. Every year, demand for H-1B visas subject to the annual cap significantly exceeds the available supply, forcing U.S. Citizenship and Immigration Services (USCIS) to use a lottery system. USCIS uses an electronic registration system to collect basic information from employers during the registration period for each fiscal year.
On September 24, 2025, the Department of Homeland Security (DHS) issued a Notice of Proposed Rulemaking (NPRM) in the Federal Register titled “Weighted Selection Process for Registrants and Petitioners Seeking To File Cap-Subject H-1B Petitions.” If finalized, this proposal would become a binding regulation.
If finalized, this rule would replace the current random lottery with a weighted selection process, giving higher preference to petitions offering higher wages while still keeping the door open for lower-wage positions. DHS argues this approach better aligns with Congress’s intent to prioritize highly skilled and better-compensated workers.
This article explores the proposed H-1B Weighted Selection Process: what it means, how it compares to the current system, and what employers, beneficiaries, and attorneys should consider.
Background: Why Change the H-1B Lottery?
The H-1B Cap
- 65,000 H-1B visas available annually under the regular cap.
- 20,000 additional visas reserved for those with advanced U.S. degrees.
Since demand consistently exceeds supply, USCIS has relied on a random lottery to allocate visas. To ensure the number of selected registrations matches the statutory cap, USCIS uses the applicable numerical allocation when counting and selecting registrations. While fair in process, this system gives equal odds to all wage levels—treating a highly paid engineer at Wage Level IV the same as an entry-level position at Wage Level I.
The Problem with Randomness
DHS notes that higher wage-level positions have historically been underrepresented among selected petitions. As a result, the lottery often fails to advance Congress’s goal of bringing the “best and brightest” to the U.S. workforce.
By moving to a weighted system, DHS aims to:
- Encourage higher wage offers.
- Improve alignment with Congressional intent.
- Discourage use of H-1B for cost-saving, lower-paid roles.
Under the new system, applicants at higher wage levels will have a higher likelihood of selection, as the weighting is based on Occupational Employment and Wage Statistics (OEWS) wage distribution. This approach prioritizes higher OEWS wage levels, directly tying wage data to the selection process.
How the Current H-1B Lottery Works
- Electronic Registration: Employers submit online registrations for each prospective worker. During registration, employers must provide accurate job descriptions and indicate the relevant occupational classification, such as the appropriate Standard Occupational Classification (SOC) code, for each position.
- Beneficiary-Centric Selection: Each unique beneficiary is counted once, regardless of multiple registrations.
- Random Lottery: If registrations exceed the cap, USCIS selects randomly until slots are filled.
- Filing Window: Selected registrants file full petitions within 90 days. Petitioners may be required to submit evidence supporting the wage level and occupational classification indicated in the registration.
This system provides no preference to higher wages or skills.
Key Features of the Proposed H-1B Weighted Selection Process
The NPRM introduces weighted entries based on wage levels under the Department of Labor’s OEWS system. For each registration, the appropriate wage level must be indicated, reflecting the position’s skill level and the geographic area where the job is located.
- Wage Level IV: 4 entries in the lottery
- Wage Level III: 3 entries
- Wage Level II: 2 entries
- Wage Level I: 1 entry
Level I corresponds to entry level positions and entry level workers, typically requiring less experience or skill, while Level IV represents fully competent workers at the highest OEWS wage level. The weighted selection process uses OEWS wages to assign more entries to higher wage levels, and the lowest OEWS wage level among all registrations for a beneficiary will be used to determine their selection odds. This process will require employers to accurately report wage levels and submit supporting evidence if requested. Level III wage and Level IV wage correspond to higher skill and experience, and level workers are categorized based on both wage and the position’s skill level.
Safeguards Against Abuse
- For multi-location jobs, the lowest wage level applies.
- Employers must certify bona fide offers.
- USCIS will use the lowest wage in any range provided.
- Weighted selection may also apply to petitions if registration is suspended.
This ensures integrity while still offering chances for lower-wage roles.
Paperwork Reduction and Efficiency
The proposed rule introducing a weighted selection process for H-1B cap subject petitions is designed to significantly enhance the efficiency of the registration process for both employers and immigration services. By leveraging OEWS wage data and standardized wage levels, the new system aims to streamline the way employers submit and manage H-1B registrations.
Under the current random selection process, employers often face a complex and paperwork-heavy system, with little incentive to offer higher wages or prioritize higher skilled positions. The proposed rule changes this dynamic by requiring employers to submit accurate wage information—specifically, the appropriate OEWS wage level and relevant standard occupational classification—at the time of registration. This shift not only ensures that higher paid foreign workers and higher skilled workers are given greater consideration, but also reduces the need for individualized wage determinations and additional documentation.
By standardizing the wage data required for each registration, the new system minimizes the administrative burden on employers. The DHS estimates that this approach could lead to a 30% reduction in the number of registrations submitted during the annual initial registration period. This reduction is expected because employers will be incentivized to offer higher wages to increase their chances of selection, resulting in fewer, but more competitive, properly submitted electronic registrations.
Additionally, the use of a weighted selection process based on wage levels—ranging from Level I (entry level) to Level IV (highest occupational employment)—ensures that the selection process is more transparent and efficient. Employers will no longer need to navigate multiple wage determinations. Instead, the beneficiary assigned wage level and intended employment details will be clearly documented at the outset, aligning with the prevailing wage rate and the appropriate SOC code for the position.
This streamlined approach not only reduces paperwork but also improves the accuracy and reliability of wage data submitted. By requiring employers to provide precise wage information, the proposed rule helps prevent wage depression and ensures that foreign workers are offered a fair and competitive actual wage. The focus on higher wage levels and higher wage positions supports congressional intent to prioritize higher skilled positions and address labor shortages in critical occupational classifications.
Overall, the proposed weighted selection process represents a significant step forward in reducing administrative complexity, promoting higher wages, and ensuring that the H-1B program remains competitive and effective for all stakeholders. By prioritizing higher paid workers and improving the efficiency of the registration process, the new system is poised to deliver meaningful benefits to employers, foreign workers, and the broader U.S. workforce.
Benefits and Risks of the H-1B Weighted Selection Process
Potential Benefits
- Rewards higher wages and skills: Increases odds for highly skilled positions.
- Aligns with Congressional intent: Focuses on “best and brightest.”
- Encourages fairer wages: Employers may raise offers to compete.
- Keeps opportunities open: Lower wage levels are still eligible.
Risks and Challenges
- Added complexity: Employers must carefully calculate OEWS wage levels.
- Lower odds for entry-level roles: Industries relying on junior workers may be disadvantaged.
- Possible wage inflation: Risk of artificially inflated offers.
- Litigation risk: Similar 2021 wage-ranking rules were struck down in court.
Strategic Recommendations
For Employers
- Structure offers to align with higher wage levels when possible.
- Keep strong documentation for wage justifications.
- Avoid broad salary ranges that could trigger compliance issues.
- Engage in the public comment process before October 24, 2025.
For Beneficiaries
- Negotiate compensation that reaches higher wage levels.
- Understand that wage directly impacts selection odds.
- Consider employers that can support stronger wage offers.
For Immigration Attorneys
- Segment clients by wage tiers and advise strategically.
- Submit comments with real-world wage data.
- Prepare clients for both the transition and potential litigation.
What’s Next? Timeline & Legal Outlook
- Comment Deadline: October 24, 2025 (rule proposal).
- Possible Revisions: DHS may adjust based on comments.
- Implementation: USCIS must update registration systems and forms.
- Legal Risk: Courts may again challenge DHS authority, as they did in 2021.
Broader Implications
While the H-1B Weighted Selection Process could raise wage standards, it may disadvantage startups, nonprofits, and employers in lower-wage regions. The policy risks creating geographic and sectoral inequities, favoring large firms in high-paying industries.
Transparency and oversight will be critical to ensure the rule is implemented fairly and does not unintentionally exclude diverse talent pools.
Conclusion
The proposed H-1B Weighted Selection Process marks a significant shift in how USCIS may allocate cap-subject visas. If finalized, it will reward higher wages and skill levels while still leaving opportunities for lower-level roles.
Key takeaways:
- Employers must prepare for wage-based strategies.
- Beneficiaries should negotiate wisely.
- Attorneys should guide clients on compliance and litigation risks.
Until finalized, the current random lottery remains in place. But the direction is clear: wage-based weighting is likely to shape the future of H-1B selection.
If you have questions about the H-1B weighted selection process, we encourage you to contact our Raleigh, NC office for personalized guidance.