Federal: Department of Homeland Security Proposes Rule on Wage-Based H-1B Selection Process

What happened?

On September 24, 2025, the Department of Homeland Security (DHS) proposed a rule to change how H-1B visas are allocated, replacing the current random lottery with a weighted system that prioritizes higher-paying jobs while maintaining opportunities across all wage levels.

Overview:

Current System

• The H-1B program allows U.S. employers to hire highly skilled foreign workers.
• Annual cap: 65,000 regular slots plus 20,000 for advanced U.S. degree holders.
• When registrations exceed the cap, USCIS uses a random lottery.

Proposed Changes

• Weighted Selection: Candidates are entered into the lottery based on wage level:
  • Level IV: 4 entries
  • Level III: 3 entries
  • Level II: 2 entries
  • Level I: 1 entry

• Each beneficiary can only be selected once, even if they have multiple entries.

• The system will work with the beneficiary-centric process introduced in 2024 to prevent fraud.

Integrity Measures

• Employers must:
  • Select the highest wage level the offered salary meets.
  • Provide accurate Standard Occupational Classification (SOC) codes and worksite locations.
  • Ensure consistency between registration and petition (salary, job details, location).

• USCIS may revoke petitions if later filings show significantly different terms.

Comments

• 60-day public comment period began September 24, 2025.
• Submit comments via regulations.gov under DHS Docket No. USCIS-2025-0040.
• DHS will review feedback before finalizing the rule.

Practical Impact

• Employers must complete wage analysis earlier in the process.
• Salary obligations may change if petitions are filed after July 1, when wage data is updated.
• Smaller companies and startups may face challenges competing with higher salaries.

Source References

• DHS Proposed Rule – Weighted Selection Process for Registrants and Petitioners Seeking To File Cap-Subject H-1B Petitions
• Regulations.gov – Comments – Weighted Selection Process for Registrants and Petitioners Seeking To File Cap-Subject H–1B Petitions

Resources

• Bureau of Labor Statistics – Occupational Employment and Wage Statistics

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