US authorities are exploring changes to the way cap‑subject H‑1B visas are awarded, potentially weighing applications based on certain objective factors instead of the existing random lottery.
On July 17, 2025, the Department of Homeland Security (through USCIS) sent a draft rule titled “Weighted Selection Process for Registrants and Petitioners Seeking To File Cap‑Subject H‑1B Petitions” (RIN 1615‑AD01) to the Office of Management and Budget (OMB), which effectively initiates the formal regulatory process.
The proposal’s details and full language will not be made available to the public until it is published in the Federal Register, but it is expected to prioritise entries using variables such as salary level and perhaps educational credentials.
If adopted, the redesign would force employers to rethink how they recruit and plan for foreign talent, especially recent graduates.
Current H-1B Cap-Subject Rules
The H‑1B category allows employers to sponsor foreign professionals in specialty roles. Each fiscal year, USCIS can approve 85,000 new H‑1Bs: 65,000 in the general pool and 20,000 for individuals with US graduate degrees. When more registrations are filed than there are slots, USCIS conducts a lottery to decide who may file a petition.
This approach drew criticism from the Trump administration, arguing that the random system fails to favor highly skilled workers. In early 2021, DHS finalized a rule to rank petitions by prevailing wage, Level IV first, then Level III, II and I, resorting to a draw only if needed. The successive Biden administration delayed and later rescinded that rule before it took effect.
Draft Weighted Selection Rule
On July 21, 2025, the second Trump administration advanced another proposal, again labelled “Weighted Selection Process for Registrants and Petitioners Seeking to File Cap‑Subject H‑1B Petitions,” to the OMB. The text has yet to be released, but it is anticipated to create a system where higher wages and other merit‑based credentials improve an applicant’s odds. Rather than giving every registration an equal chance, weights would be assigned based on the Department of Labor’s four‑tier wage structure: Level IV and III petitions could receive more “entries,” while Level I or II cases, often those for entry‑level graduates—would get fewer.
Economists speculate that the plan could still involve a lottery, albeit one where higher tiers have more tickets. For example, an employer paying Level IV wages might get four opportunities in the draw versus one for Level I.
Comparison with the 2021 Rule
While the 2021 proposal would have abolished the lottery in favor of a strict wage hierarchy, the current draft may retain randomisation while tilting the odds toward higher salaries. Such a method would advantage companies prepared to offer top‑tier pay and could make it harder for recent graduates and early‑career professionals to secure H‑1Bs.
Past analyses show that international students in Level I or II categories fared much better under the random lottery than under wage‑based ranking; similar outcomes are likely under a weighted lottery.
OMB Review and Rulemaking Process
Sending the draft to OMB starts the federal regulatory process. The office has up to 90 days to review the rule. If it clears that hurdle, DHS will publish it in the Federal Register for a 60‑day comment period.
After considering public feedback, the agency could finalise the regulation and set an effective date, usually 30 to 60 days later. Consequently, the new system would likely not apply before the FY 2027 H‑1B cap cycle, which begins in March 2026.
Past attempts at altering the lottery have faced lawsuits, and further litigation is anticipated.
Effects on Employers and Applicants
The draft rule fits the Trump administration’s broader goal of favoring higher‑paying immigration. It may also foreshadow tighter limits on programs like Optional Practical Training.
Should the weighted approach take effect, employers hiring entry‑level engineers or teachers might struggle, while firms offering premium salaries could gain an advantage.
The change would not, however, resolve the fundamental problem: demand far exceeds supply. In FY 2026, USCIS received more than 343,000 valid registrations, about four times the available visas, so two‑thirds of applicants were unsuccessful.
It is also unclear whether the rule will weigh factors beyond salary, such as US degree status.
Companies and educational institutions are encouraged to take part in the comment process and consider how the proposed system might influence their hiring strategies and the nation’s competitiveness.
Need assistance?
Until any new rule takes effect, the current lottery remains the law. Employers should stay abreast of developments and be ready to adapt. A weighted process could shift hiring priorities and encourage higher pay for H‑1B candidates. Organizations concerned about how these changes might affect their recruitment and visa sponsorship strategies should begin assessing potential impacts now. Speak to our team today to assess how the proposed changes may affect your hiring pipeline, visa sponsorship approach and long-term workforce needs.
Author
Founder & Principal Attorney Nita Nicole Upadhye is a recognized leader in the field of US business immigration law, (The Legal 500, Chambers & Partners, Who's Who Legal and AILA) and an experienced and trusted advisor to large multinational corporates through to SMEs. She provides strategic immigration advice and specialist application support to corporations and professionals, entrepreneurs, investors, artists, actors and athletes from across the globe to meet their US-bound talent mobility needs.
Nita is an active public speaker, thought leader, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals.