H-1B Lottery Rule Change: Weighted Wage-Based Selection

The U.S. Department of Homeland Security (DHS) has issued a Notice of Proposed Rulemaking (NPRM) that could significantly alter the process for selecting H-1B cap-subject petitions. If implemented, the current random lottery system would be replaced with a weighted selection process that favors higher-wage and higher-skilled positions. While the H-1B program has long been oversubscribed, this proposal aims to align visa allocations more closely with congressional intent: attracting highly skilled workers while protecting the U.S. labor market.

Key Features of the Proposed Rule

1. Shift from Random to Weighted Selection

Currently, USCIS randomly selects from among properly filed electronic registrations. Under the proposed rule, selection chances would be weighted based on the prevailing wage level of the job offer:

• Wage Level IV (Fully Competent): 4 entries in the lottery
• Wage Level III (Experienced): 3 entries
• Wage Level II (Qualified): 2 entries
• Wage Level I (Entry-Level): 1 entry

This system gives higher wage offers greater odds of selection, while lower-wage positions still retain some chance.

2. Wage Level Integrity Measures

Employers must designate the lowest applicable wage level when multiple work locations or roles are involved. This reduces incentives to “game” the system by artificially inflating wages to improve selection chances. Registrants relying on non-OEWS (Occupational Employment and Wage Statistics) surveys must still designate an appropriate level for consistency.

3. Employer Incentives

The rule is designed to encourage employers to offer higher wages and seek workers for more complex roles. DHS views salary as a reasonable proxy for skill and value to the U.S. economy.

4. Continued Opportunities for All Wage Levels

Unlike the 2021 wage-based selection rule (which was struck down in court), this proposal does not eliminate opportunities for lower-wage positions. Instead, it balances opportunity with priority, ensuring even entry-level candidates maintain a chance.

Likely Impacts on the H-1B Process

For Employers

• Large corporations and tech firms offering higher salaries will see improved selection odds.
• Smaller businesses and nonprofits may face challenges unless they increase the wages they offer.
• Employers must carefully document SOC codes, prevailing wages, and wage levels to ensure compliance.

For Foreign Workers

• Beneficiaries in wage levels III and IV will gain a significant advantage.
• Entry-level professionals (Level I), especially recent graduates, may face reduced chances unless employers adjust salaries.

For the Labor Market

• Reduced use of H-1B visas for lower-wage hiring, addressing long-standing criticisms of wage depression.
• Stronger U.S. competitiveness in attracting the “best and brightest” talent worldwide.

Practical Considerations Moving Forward

The rule is currently in the comment period. Employers, workers, and advocacy groups may provide feedback before it is finalized. If adopted, the FY 2027 H-1B lottery could be the first to apply these changes. Employers should start reviewing compensation structures and adjusting workforce strategies now.

Conclusion

DHS’s proposed weighted selection rule represents one of the most consequential shifts in the H-1B program in recent years. By linking selection odds to wage levels, the government is prioritizing higher-paid, higher-skilled roles. While opportunities remain across all levels, the process is clearly tilted toward higher compensation.