The Department of Homeland Security has issued a Notice of Proposed Rulemaking that would change the way H-1B visa registrations are selected under the annual cap.
Instead of a purely random registration lottery, the proposal introduces a weighted system that favors higher-paid positions. Candidates registered at higher Department of Labor wage levels would receive more entries into the lottery pool, while those at lower wage levels would continue to receive at least one entry. The aim is to increase the selection chances of roles that reflect higher compensation, aligning the cap allocation with the administration’s stated priorities of merit and wage level.
The proposed changes come soon after the administration introduced a $100,000 filing fee for certain new H-1B petitions. The new fee does not apply to petitions filed for existing H-1B workers already in the United States, such as extensions or many change-of-employer cases, but it does substantially raise the cost for employers seeking to bring new workers from abroad. The weighted lottery proposal complements this measure by encouraging employers to pay higher wages in return for greater odds of securing one of the limited cap visas.
Public comments on the proposed rule are open until October 24, 2025. If finalized without substantial change, the weighted system could apply from the FY 2027 H-1B registration season, which will take place in spring 2026.
How a Weighted H1B Lottery Would Work
The proposal would use the Department of Labor’s Occupational Employment and Wage Statistics four-tier system. A registration for a role at Wage Level IV would be entered four times into the lottery, Level III would be entered three times, Level II twice and Level I once. The system therefore retains access for all wage levels but significantly boosts the probability of selection for the highest-paid positions.
Employers would need to provide detailed information on wage level, occupational code and area of employment at the registration stage. USCIS would then expect the petition to match the wage level declared. Any discrepancies could result in denial or revocation. DHS has projected that selection odds would fall by nearly half for Level I filings but would rise significantly for Levels II, III and IV.
Because the weighted lottery is only at the proposed stage, it carries no legal effect until finalized. Public comment, possible revisions and litigation could delay or alter the proposal. Employers relying on the change before it is adopted risk serious planning errors. Even if implemented, the reform does not increase the statutory H-1B quota. The overall cap of 85,000 new H-1B visas each fiscal year remains in place, and the weighted system only redistributes selection probability within that limit. Litigation is also expected once the rule is finalized, particularly over whether DHS can lawfully alter the selection criteria without congressional amendment.
Employers that typically sponsor at lower wage levels may see their chances of securing visas decline. There is also the risk of stricter scrutiny at petition stage, as USCIS will be watching for inflated wage declarations intended to manipulate the lottery. The requirement that petition wages match the registration information is likely to become a focal point for compliance and enforcement.
Practical Implications for Employers
Employers planning for the 2027 H-1B cap season should assess whether wage levels for potential H-1B roles are competitive under the Department of Labor’s system. Compensation strategies may need to be reviewed to remain viable in the lottery. Recordkeeping and compliance processes will also take on greater importance, since documentation must demonstrate that the wage level used at registration is accurate and supportable at petition stage.
Until the rule is finalized, the random lottery remains in place. Employers and foreign nationals should track the development of the proposal and consider submitting comments to DHS if their industry will be affected. At the same time, contingency planning through alternative routes, such as L-1 intra-company transfers, O-1 extraordinary ability petitions or employment-based green cards, can help reduce reliance on the H-1B cap.
Need Assistance?
The proposed H-1B weighted lottery would create a fundamental shift in how cap cases are selected. Employers risk both increased costs and greater compliance scrutiny. For applicants, the reform could make selection even more competitive depending on the wage level offered. Because the proposal is still under review and may change, it is important to take professional advice before committing to H-1B planning strategies.
Speak to our US attorneys for tailored guidance on how the proposed rule may affect your business or individual case and to explore all available options.
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.