On 09/24/2025 the U.S. Department of Homeland Security (DHS) proposes to amend its regulations governing the process by which U.S. Citizenship and Immigration Services (USCIS) selects H-1B registrations for unique beneficiaries for filing of H-1B cap-subject petitions (or H-1B petitions for any year in which the registration requirement is suspended). After 16,964 comments that have been received at Regulations.gov, DHS published a final rule called “Weighted Selection Process for Registrants and Petitioners Seeking To File Cap-Subject H-1B Petitions”. Through this rule, DHS is implementing a weighted selection process that will generally favor the allocation of H-1B visas to higher-skilled and higher-paid aliens, while maintaining the opportunity for employers to secure H-1B workers at all wage levels, to better serve the congressional intent for the H-1B program. This rule will be effective in time for the FY 2027 registration season. In this article we will explain how the new rule works.
Background on H-1B Registration before the Weighted Selection Process
The H-1B visa program permits U.S. employers to temporarily employ foreign nationals in specialty occupations, certain Department of Defense–related research or coproduction projects, or in fashion modeling roles requiring distinguished merit and ability. Under the Immigration and Nationality Act (INA) and related regulations, a specialty occupation is one that requires both the theoretical and practical application of highly specialized knowledge and at least a bachelor’s degree (or equivalent) in a specific field as the minimum entry requirement in the United States.
Congress imposes an annual numerical limit, or “cap,” on new H-1B approvals each fiscal year. The general cap is set at 65,000 initial H-1B visas or statuses. In addition, up to 20,000 H-1B visas are exempt from this limit for beneficiaries who have earned a qualifying U.S. master’s degree or higher. Certain other categories of H-1B petitions, such as those filed by cap-exempt employers, are not subject to these numerical limits.
Because demand for H-1B visas frequently exceeds available numbers, U.S. Citizenship and Immigration Services (USCIS) historically used a random selection process to allocate visas during high-demand years. To improve efficiency and reduce costs for employers, the Department of Homeland Security (DHS) introduced an electronic registration system, first implemented for the FY 2021 cap season. Under this system, employers must submit an electronic registration for each prospective H-1B worker. Employers with selected registrations may file full H-1B cap-subject petitions during the designated filing period.
In February 2024, DHS further reformed the process by adopting a beneficiary-centric selection system. This approach counts each unique beneficiary only once in the random selection, regardless of how many registrations are submitted on their behalf. The change aims to enhance fairness, prevent manipulation, and ensure that each beneficiary has an equal chance of selection.
Why did DHS and USCIS change the rules?
History of H-1B visa
Congress granted the Department of Homeland Security (DHS) authority to allocate H-1B visa cap numbers in a fair, orderly manner, emphasizing reasoned decision-making aligned with the program’s statutory goals. The U.S. Congress designed the H-1B program to help employers address labor shortages for highly skilled or educated workers, allowing them to stay competitive globally. However, to mitigate potential adverse effects on U.S. workers—such as wage depression—Congress imposed annual numerical caps and other protections, viewing the cap as a tool for ongoing monitoring of admissions.
Historically, U.S. Citizenship and Immigration Services (USCIS) employed a random selection process for registrations or petitions when demand exceeded the cap. While reasonable, DHS argues this method fails to optimize the program or fulfill congressional intent, as it does not prioritize highly skilled positions. Instead, DHS advocates for a policy that incentivizes recruiting beneficiaries for roles with the highest skill levels or wages within their occupational classification and employment area, correlating higher pay with greater expertise.
Given over a decade of demand outstripping supply, DHS proposes selecting registrations based on wage levels relative to Occupational Employment and Wage Statistics (OEWS) data, favoring higher-wage beneficiaries. This approach weights registrations by wage level for unique beneficiaries, rather than ranking them outright, ensuring opportunities for all wage levels—including entry-level—while prioritizing higher-skilled workers.
Regulatory Changes
This final rule diverges from the 2021 H-1B Selection Final Rule (later vacated and withdrawn), which ranked by prevailing wage and likely excluded lower-level registrations. By weighting instead, the new process avoids precluding lower-wage workers but incentivizes higher pay and skills, reducing program abuse for filling low-paid positions. It aims to enhance U.S. economic competitiveness by attracting the “best and brightest,” protect U.S. workers’ wages and jobs, and counteract wage suppression.
The Weighted Selection Process aligns with Presidential Proclamation 10973 (September 19, 2025), directing prioritization of high-skilled, high-paid nonimmigrants under the Immigration and Nationality Act. DHS identifies random selection as contributing to exploitation, where employers hire lower-skilled workers, harming U.S. labor markets. This reform seeks to restore the program’s integrity, promoting highly skilled admissions while safeguarding domestic opportunities.
How the New Weighted Selection Process Works
Electronic submission of a registration
The first step of the new H-1B Weighted Selection Process is the electronic submission of a registration for each unique beneficiary a petitioner seeks to employ. This registration is an antecedent procedural step that must be properly submitted during a designated initial period, which lasts a minimum of 14 calendar days.
Under the new weighted selection methodology, this first step requires specific information not previously mandated:
- Selection of OEWS Wage Level: The registrant must select the highest Occupational Employment and Wage Statistics (OEWS) wage level (Level I, II, III, or IV) that the beneficiary’s proffered wage will equal or exceed for the relevant position.
- Occupational and Geographic Data: The petitioner must provide the Standard Occupational Classification (SOC) code for the proffered position and the area of intended employment that served as the basis for the selected wage level.
- Beneficiary Identification: The registrant must provide the beneficiary’s valid passport or travel document information, ensuring each individual is registered under only one such document.
- Bona Fide Certifications: The registrant must certify under penalty of perjury that the registration represents a bona fide job offer and that the employer intends to file an H-1B petition if the beneficiary is selected.
If a beneficiary will work in multiple locations or positions, the registrant is required to select the lowest corresponding OEWS wage level among those sites for the purpose of the registration. This requirement is intended to prevent the manipulation of wage levels to unfairly increase selection odds. Only after a registration is successfully submitted and subsequently selected is the petitioner eligible to proceed to the next step of filing a formal H-1B cap-subject petition.
Weighted Selection and Notification
After the first step of electronic registration is completed and the registration period closes, the next phase of the process involves weighted selection, notification, and the formal filing of the H-1B petition.
Once the registration period ends, if USCIS receives more registrations than needed to meet the numerical caps, it will conduct a weighted selection. Unique beneficiaries are assigned to the selection pool based on the wage level selected in their registration:
- Level IV: Entered 4 times.
- Level III: Entered 3 times.
- Level II: Entered 2 times.
- Level I: Entered 1 time.
Following this selection, USCIS will separately notify each registrant whose beneficiary has been selected, informing them that they are now eligible to file an H-1B cap-subject petition.
Think of this first step like entering a weighted lottery. Instead of every entry having an equal chance, your “ticket” is marked with a value based on the job’s wage level. While everyone gets to put their name in the hat, the rule essentially gives those with higher wage level tickets more entries in the pool, increasing their statistical probability of being picked while still leaving the door open for others
Obtaining a Certified Labor Condition Application (LCA)
In general, before a petitioner can file the actual H-1B petition, they must obtain a certified Labor Condition Application (LCA) from the Department of Labor (DOL). Employers must submit a Labor Condition Application (Form ETA-9035/ 9035E) to the Department of Labor electronically through the FLAG system attesting to compliance with the requirements of the H-1B, H-1B1 or E-3 program. LCAs must not be submitted more than 6 months before the beginning date of the period of employment. The two exceptions to electronic filing are employers with physical disabilities or those who lack Internet access and cannot electronically file the Form ETA-9035E. An employer must petition the Administrator of OFLC for prior special permission to file an LCA by mail on the Form ETA-9035.
The LCA must support the position information provided during registration and attest that the employer will pay the beneficiary at least the required wage.
Filing the H-1B Cap-Subject Petition
Prospective petitioners with selected registrations must file their formal H-1B petition (Form I-129) within an associated filing period that lasts at least 90 days. Under the new rule, this petition must meet strict consistency requirements:
- Data Matching: The petition must contain and be supported by the same identifying and position information provided in the selected registration, including the SOC code and area of intended employment.
- Wage Verification: The petition must include a proffered wage that equals or exceeds the prevailing wage for the OEWS wage level indicated during registration. Employers are encouraged, but not required, to obtain a prevailing wage from the National Prevailing Wage Center (NPWC). More information on obtaining a prevailing wage determination from the NPWC can be found here.
- Supporting Evidence: Petitioners must submit evidence of the basis of the wage level selected at the time of registration (such as a printout from the DOL OFLC Wage Search website) and evidence of the passport or travel document used during registration.
USCIS has the authority to deny or revoke the petition if it does not match the registration information or if the registration is determined to contain false certifications or was not a bona fide job offer.
Consequences of the new rule implementation?
The implementation of the new weighted selection rule for H-1B cap-subject petitions carries significant economic, procedural, and strategic consequences for employees, employers, and the federal government.
Consequences for Employees (Beneficiaries)
Global Competitiveness: By favoring the “best and brightest,” the government aims to enhance the United States’ competitive edge in the global labor market, particularly in critical fields like AI and cybersecurity
Shift in Selection Probability: The most direct impact is the change in the probability of being selected in the H-1B lottery based on wage level. Level IV beneficiaries see their selection probability increase from the baseline of ~30% to over 61%, while Level I (entry-level) beneficiaries see their chances drop to approximately 15%.
Wage Transfers: The rule creates a massive redistribution of wages, estimated at $858 million annually. This is viewed as a transfer from Level I workers (who lose out on selection) to higher wage level workers who are admitted.
Talent Pipeline Challenges: Many international students and recent graduates typically start at Level I wages; commenters expressed concern that this rule could disrupt the “education-to-employment” pipeline for F-1 students on OPT, potentially forcing talented individuals to relocate to other countries.
Negotiation Leverage: Highly skilled workers may gain greater leverage in negotiating higher salaries, as employers are incentivized to offer higher wages to increase their chances of securing a visa for that worker.
Consequences for Employers (Petitioners)
Administrative Costs and Time Burdens: Employers face an estimated $30 million in annual compliance costs. This includes an additional 20 minutes for each registration and 15 minutes for each petition to provide required data like OEWS wage levels and SOC codes.
Loss of Labor and Producer Surplus: Employers who rely on entry-level (Level I) H-1B workers face a loss in “producer surplus” if their candidates are not selected, which represents a cost in lost productivity and profits.
Impact on Small Businesses: Approximately 30% (5,193) of small entities that use the H-1B program are expected to experience a “significant economic impact,” defined as a cost increase greater than 1% of their annual revenue.
Increased Scrutiny and Integrity Risks: Employers face a higher risk of denial or revocation if their petition details do not match their registration. USCIS has new authority to deny subsequent petitions if it determines an employer is attempting to “unfairly increase the odds of selection” by gaming wage levels or locations.
Strategic Advantage for High-Wage Firms: Companies in high-paying sectors like tech and finance may find it easier to recruit top global talent because their high-salary offers translate to better lottery odds.
Consequences for the Government
Increased Tax Revenue: The shift toward higher-paid workers is expected to provide an unquantifiable increase in state and federal payroll taxes paid by employers.
Program Integrity and Mission Alignment: Implementation aligns the H-1B program with executive directives to prioritize high-skilled and high-paid aliens. It is intended to reduce systemic abuse where the program was used to replace U.S. workers with lower-paid foreign labor.
Administrative Burden: USCIS must invest resources into updating IT systems and training officers to evaluate the new wage-based data during the adjudication phase.
How the IMMIGRATION PROFESSIONAL ASSOCIATION can help?
Navigating the complexities of the H-1B cap-subject process has become significantly more challenging with the implementation of the weighted selection rule, effective for the FY 2027 registration season. At IMMIGRATION PROFESSIONAL ASSOCIATION, our expert legal team provides the strategic guidance necessary to adapt to these changes, which now favor beneficiaries at higher OEWS wage levels.
Strategic Planning for Weighted Selection
Under the new methodology, a unique beneficiary’s selection probability is tied directly to their proffered wage relative to their Standard Occupational Classification (SOC) code and area of intended employment. Because a Level IV registration is entered into the pool four times compared to a Level I entry, precise wage-level selection is a critical procedural step. Our firm assists employers in conducting thorough wage-level analyses to maximize selection odds while ensuring that all proffered wages meet or exceed the prevailing wage required for the selected level.
Precise Petition Preparation and Integrity Compliance
USCIS now mandates strict consistency between the initial electronic registration and the subsequent H-1B petition (Form I-129). Any discrepancy in position information, SOC codes, or identifying documents can lead to immediate denial or revocation. IMMIGRATION PROFESSIONAL ASSOCIATION provides comprehensive filing services, including:
- LCA Certification: Managing the Labor Condition Application (LCA) process with the Department of Labor (DOL) to ensure it perfectly supports the registration data.
- Data Matching Audits: Verifying that all Form I-129 details—specifically the area of intended employment and OEWS wage level—match the “locked-in” registration information.
- Specialty Occupation Defense: Drafting robust supporting evidence to prove that the proffered role requires highly specialized knowledge and a relevant degree.
Beyond the H-1B Lottery: Related Immigration Services
Recognizing that the new rule reduces selection probability for entry-level (Level I) workers to approximately 15%, we provide strategic advice on alternative pathways. If a beneficiary is not selected, our firm can help parties explore L-1 intracompany transfers, O-1 extraordinary ability visas, or F-1 OPT/STEM extensions. We also represent clients in responding to Requests for Evidence (RFEs) and navigating FDNS site visits to maintain program integrity and protect against claims of wage or location manipulation.
Working with IMMIGRATION PROFESSIONAL ASSOCIATION is like hiring a professional navigator for a high-stakes race. The government has changed the rules of the track, giving faster cars (higher wage levels) a head start. We ensure your vehicle is perfectly tuned to meet every technical regulation, preventing you from being disqualified for a “paperwork foul” at the finish line, while mapping out alternative routes if the main road is too crowded to pass.
