On December 23, 2026, U.S. Citizenship and Immigration Services (USCIS) announced a final rule that would significantly change how the agency selects registrations for H-1B cap-subject petitions. The final rule is effective February 27, 2026 and will 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 final 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

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. To keep the integrity of the process, the final rule gives USCIS the authority to reject a subsequent new or amended petition or revoke an approved petition if the agency were to determine that the new or amended petition was part of the petitioner’s efforts to gain an unfair advantage in the registration selection process.

What’s Next

There may be 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. However, employers should still be ready for the weighted lottery to be implemented for the FY 2027 cap registration period that will occur in March 2026.

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