On September 24, 2025, the Department of Homeland Security (DHS) issued a proposed rule that would significantly change how U.S. Citizenship and Immigration Services (USCIS) selects registrations for H-1B cap-subject petitions. The proposal would replace the current purely random lottery system with a weighted selection process that gives higher odds to beneficiaries offered higher wages.

Weighted Lottery Based on Wage Level

The U.S. Department of Labor’s Occupational Employment and Wage Statistics (OEWS) establishes a tiered structure for determining the appropriate minimum wage for a job based on the location of the job and the education and experience required for the job. The OEWS has four levels of prevailing wages for designated occupations, with level 1 representing the minimum wage for the most entry-level positions within an occupation and level 4 representing the minimum wage for the most senior positions within an occupation.
Under the proposed rule, beneficiaries would be entered into the lottery at a rate corresponding to their offered salary and the associated OEWS wage level, as set forth below:

• • Offered salary at Level 4 wage (highest wage): 4 entries
• • Offered salary at Level 3 wage: 3 entries
• • Offered salary at Level 2 wage: 2 entries
• • Offered salary at Level 1 wage: 1 entry

Accordingly, a beneficiary with a proffered salary meeting the Level 4 wage will have four times the chance of selection in the lottery compared to a beneficiary offered an entry level salary. Entry level employees, often recent college graduates, offered a salary corresponding to Level 1 wages will have a much diminished chance of selection in the lottery.

If a designated beneficiary will work in multiple locations, the beneficiary will be entered into the lottery based on the lowest associated wage level.

Change to Registration Process

If the rule is implemented, employers will be required to undertake additional analysis and provide more information at the time of lottery registration. While an employer will not need to file a Labor Condition Application for registration purposes, they will have to report additional occupation and wage information. Specifically, to facilitate the weighted lottery, employers will need to report the Standard Occupation Classification (SOC) code for the prospective position, the OEWS wage level corresponding to the salary offered, and the area of intended employment. If selected in the lottery, the H-1B petition filed by the employer will need to establish that the wage offered for the position corresponds to the OEWS wage level designated at registration, with limited exceptions.

What’s Next

The government will accept comments on the proposed rule for 30 days, until October 24, 2025. We then expect the government to review comments and publish a final rule in time to implement the weighted lottery for the FY 2027 cap registration period that will occur in March 2026. We expect legal challenges to any final rule giving preferential treatment to higher wage earners, given the adverse impact on small businesses, non-profit organizations, and employers competing for highly skilled workers in a range of positions.

For additional information, please contact your designated Van Der Hout representative.