On September 24, 2025, the Department of Homeland Security (DHS) published a Notice of Proposed Rulemaking (NPRM) that would change the way annual H-1B cap lottery selections are made. The announced change would, in years when demand for new H-1B visas exceeds the annual numerical cap, replace the current random lottery with a wage-weighted selection process. Each unique registered beneficiary would get entries in the lottery based on the level of their offered wage (Level IV = 4 entries, Level III = 3 entries, Level II = 2 entries, Level I = 1 entries) in the Bureau of Labor Statistics’ Occupational Employment and Wage Statistics (OEWS) system. After the draw to fill the regular H-1B cap of 65,000 per year, the advanced-degree exemption of up to 20,000 would use the same weighting system.
After the 30-day public comment period, if the regulation becomes a Final Rule, DHS intends implement the new process in the H-1B cap registration in 2026 for new H-1Bs taking effect in FY2027, starting October 1, 2026. However, because litigation is likely in the event of a Final Rule, it is unknown whether or when such a Final Rule would apply.
Note that before the end of the first Trump Administration, in 2020, DHS adopted a Final Rule for a wage-weighted H-1B lottery selection, similar in some respects to the current NPRM. Implementation of that rule was delayed and ultimately withdrawn by the Biden Administration after a federal court vacated it. Our blog post on the NPRM for that Final Rule is here.
Existing H-1B law relating to wages
Under existing law and procedure, the beneficiary’s offered wage is not considered in the H-1B cap lottery registration process. Only after a beneficiary is selected in the lottery may an employer file an H-1B petition with USCIS. As part of the H-1B petition process, the petitioner (employer) must file with the U.S. Department of Labor (DOL) a Labor Condition Application (LCA) attesting, among other things, that it will pay the beneficiary a wage that is the higher of: (1) the actual wage that it pays to all other individuals with similar experience and qualifications for the specific employment in question in the geographic area of employment; or (2) the prevailing wage for the occupational classification, per DOL’s Standard Occupation Classification, or SOC, system, in the geographic area of intended employment. Prevailing wages are usually calculated by reference to the government’s OEWS system. DOL uses OEWS data to set four levels of prevailing wage for each occupation in locations across the United States, referred to as Levels I, II, III, and IV.
Proposal would require employers to calculate required wage before lottery registration
Instead of the minimal information required for an H-1B cap lottery registration under current regulations (employee name and passport details, basic employer information including name, address, FEIN, and authorized signer details, etc.), the proposed regulation would require, in addition, that the electronic registration form include the SOC code for the occupation, the wage that an employer will pay the H-1B worker, the prevailing wage rate for the job, the source of the prevailing wage rate, and the applicable prevailing wage level (Level I, II, III, or IV).
Selection of prevailing wage level for purposes of lottery registration
Because a higher prevailing wage level (I, II, III, or IV) will correlate with increased chances of lottery selection, the proposed rule seeks to prevent “gaming the system.” It would require the employer to identify the prevailing wage level that the wage it intends to pay the beneficiary would equal or exceed for the relevant SOC code in the geographic area(s) of intended employment. The OEWS wage level selected on the petition must reflect the corresponding prevailing wage level as of the date the registration is submitted.
A typical fact pattern for an H-1B registration under the new rule will involve one beneficiary, registered by only one employer, using the OEWS wage data for prevailing wage, for a job that corresponds to an occupation in the SOC system, to be performed in a single geographic location. In such a case, selection of Level I, II, III, or IV will follow normal DOL guidance. However, certain factual variations are covered in the proposed rule as follows:
If the proffered wage is expressed as a range: The registrant would select the prevailing wage level that the lowest wage in the range will equal or exceed.
If the H-1B beneficiary will work for the employer in multiple locations, or in multiple positions if the registrant is an agent: The registrant would select the box for the lowest equivalent wage level among the corresponding wage levels for each of those locations or each of those positions and would list the location corresponding to that lowest equivalent wage level as the area of intended employment. In the example give in the preamble of the NPRM, if the beneficiary would work as a software developer (SOC code 15-1252) with a proffered wage of $175,000 in both Sacramento, California, where such wage exceeds Level IV, and San Francisco, California, where the highest level that such wage meets or exceeds would be Level II, the registrant would select the “Level II” box on the registration form and list San Francisco as the area of intended employment.
If multiple employers register the same unique beneficiary: USCIS uses a “beneficiary-centric” H-1B cap registration process. Multiple employers (provided they are not related to each other and not coordinating with each other) may register the same beneficiary, assuming each employer has a bona fide job for the beneficiary; however, the beneficiary is only entered once in the H-1B cap lottery. If a beneficiary is selected, and has been registered by multiple employers, each employer receives a selection notice, and the beneficiary may then choose to pursue an H-1B with any of those employers. The NPRM proposes to operate in conjunction with the existing beneficiary-centric selection process. Specifically, USCIS would continue to count registrations based on the number of unique beneficiaries who are registered but would enter each unique beneficiary into the selection pool in a weighted manner based on an assigned OEWS wage level. USCIS would assign each unique beneficiary an OEWS wage level based on the lowest OEWS wage level among all registrations submitted on the beneficiary’s behalf. For example, a beneficiary for whom a Level I registration and a Level IV registration are submitted would be assigned to Level I for the purpose of weighted selection.
If the employer relies on a prevailing wage from a source other than the OEWS wage system: In this case, if the proffered wage is less than the corresponding Level I OEWS wage, the registrant would select the “Level I” box on the registration form.
H-1B cap-subject petition filing following registration selection
An H-1B petition may be filed for a beneficiary only if the petition is based on a valid selected registration. Under the NPRM, the H-1B petition would have to contain the same identifying information and position information, including SOC code, provided in the selected registration and indicated on the LCA used to support the petition. The petition would also have to include a proffered wage that equals or exceeds the prevailing wage for the corresponding OEWS wage level in the registration for the SOC code in the geographic area(s) of intended employment.
Although the NPRM would require the registrant to list only one work location in their registration — the work location corresponding to the lowest wage level if there will be multiple work locations for the same employer – the H-1B petition would have to list all addresses where the beneficiary will work. If the geographic area of intended employment provided in the registration is not listed in the H-1B petition, USCIS may, in its discretion, determine that a change in the area(s) of intended employment is permissible, provided such change is consistent with a “bona fide job offer” at the time of registration.
Bona fide job offer
Substantial attention in the NPRM’s preamble is devoted to the requirement of a “bona fide job offer.” Any variations from the job details that were identified in the H-1B lottery registration will be subject to evaluation by USCIS of whether there was a bona fide job offer. Examples given in the NPRM include:
The geographic area of intended employment provided at registration is expected to be reflected as a worksite in the subsequently filed petition. However, recognizing that there are legitimate reasons that an intended work location might change between the time of registration and the time of filing the petition, DHS is proposing that USCIS may, in its discretion, find that a change in the geographic area(s) of intended employment would be permissible, provided such change is consistent with a bona fide job offer at the time of registration. For instance, the NPRM’s preamble states, an employer with multiple offices might decide to place the beneficiary at a different office than originally intended at a wage that equals or exceeds the same equivalent wage level for the new location as that indicated on the registration.
Using the NPRM’s example of the beneficiary who would work in both Sacramento and San Francisco where the registration only listed San Francisco as the area of intended employment, the petition would list both Sacramento and San Francisco as work locations. In such a case, USCIS would not consider this to be a “change in the area(s) of intended employment.”
The proposed rule would allow USCIS to deny a subsequent new or amended H-1B petition filed by the petitioner, or a related entity, on behalf of the same beneficiary if USCIS were to determine that the filing of the new or amended petition was part of the petitioner’s attempt to unfairly increase the odds of selection during the registration selection process, such as by reducing the proffered wage to an amount that would be equivalent to a lower wage level than that indicated on the original registration or petition.
If a new or amended petition includes the same proffered wage but a changed work location such that the proffered wage corresponds to a lower OEWS wage level for the new location than the level indicated on the registration, USCIS could consider that change in determining whether the new or amended petition was part of the petitioner’s attempt to unfairly increase the odds of selection. However, if the wage continues to meet or exceed the same OEWS wage level as listed on the original petition, USCIS would consider the totality of the circumstances when determining whether to deny a new or amended petition.
Reminder about “cap-exempt” H-1B categories, not subject to statutory numerical limits or lotteries
The NPRM’s proposed registration and selection rules apply only to “cap-subject” H-1B registrations/petitions. An H-1B beneficiary’s work for nonprofit research organizations, governmental research organizations, and nonprofit organizations affiliated with institutions of higher education is considered cap-exempt.
We will post further updates as we learn more about the status of this NPRM, and about the revised H-1B registration fields to be included in the myUSCIS registration filing portal in connection with it.
© Jewell Stewart Pratt Beckerson & Carr PC 2025