DHS Announces Final Rule Establishing Weighted Selection Process for Cap-Subject H-1B Petitions

Quick Hits

• DHS finalized a rule to replace the random H-1B selection process with a weighted, wage-level based system, effective February 27, 2026.
• The new rule prioritizes higher-paid foreign workers by giving them a greater chance of selection in the H-1B cap lottery, while still allowing entry-level workers to participate.
• USCIS will announce H-1B lottery registration dates at least thirty days in advance, and employers must provide accurate wage and job information during registration.

Under the new weighted, wage-level based selection matrix, registrants will have a higher or lower likelihood of selection based on how their salary aligns with U.S. Department of Labor (DOL) wage data for their occupation. The rule does not impact Labor Condition Application procedures, and employers remain able to select the Standard Occupational Classification (SOC) and area of employment that the employer determines is most appropriate for the role.

DHS also updated its regulations to confirm that USCIS will announce the lottery registration dates at least thirty days in advance of the lottery period.

Background

An annual numerical limit provides for 65,000 initial H-1B visas, with an additional 20,000 H-1B visas reserved for foreign workers holding advanced degrees earned from U.S. universities or colleges. USCIS has been using an electronic registration system to allocate H-1B visas since March 2020, whereby sponsoring employers initially provide only basic biographic information for each of their candidates for H-1B employment. If the registered candidate is selected in the lottery, the employer is eligible to file a complete H-1B petition for adjudication.

The final rule replaces the current random selection of H‑1B cap‑subject registrations with a weighted, wage‑based system that gives H-1B candidates with higher wages/salaries better odds of selection.

The H-1B Cap Weighted Wage-Preference System

The final rule requires that wage information be included in the initial H-1B registration process to prioritize selection favoring higher wage levels.

The weighted selection process is predicated upon the four-tiered wage structure of the DOL’s Occupational Employment and Wage Statistics (OEWS) wage survey data. The OEWS wage survey categorizes occupations by Standard Occupational Classification (SOC) code, geographic area of employment, and wage levels ranging from Level I (entry level) to Level IV (fully competent).

Registrants must include the OEWS Wage Level on H-1B registrations, which must be the highest OEWS wage level (I-IV) that the offered salary equals or exceeds for the relevant SOC code and area(s) of intended employment.

The final rule establishes a weighting process that allocates more lottery entries to higher wage levels, increasing the odds for the highest-paid foreign workers while preserving the possibility of selection at all wage levels.

Corresponding Wage Level	Number of Entries Into Selection Pool per Beneficiary
Wage Level IV	4 entries
Wage Level III	3 entries
Wage Level II	2 entries
Wage Level I	1 entry

Entries that rely on an alternate prevailing wage survey rather than OEWS data should still be submitted at the highest OEWS wage level that the wage supports. If the wage falls below OEWS Wage Level 1, the entry may still be submitted as Level 1 based on the alternate prevailing wage survey.

USCIS will require petitions filed after selection to include identifying position information reflected in the registration, including OEWS wage level, SOC code, and area(s) of intended employment. USCIS may deny or revoke petitions where subsequent filings appear inconsistent with the registration details and intended to unfairly increase selection odds.

This weighted system will retain the changes instituted with the beneficiary-centric system, including running the general lottery first and the Master’s cap lottery second, and allotting each beneficiary one registration regardless of the number of companies that submit a beneficiary.

Analysis and Impact

The weighted selection process prioritizes higher-paid foreign workers by giving them a greater chance of selection in the H-1B cap lottery.

Entry-level workers with less experience and lower wage level positions are not excluded, but their chances of selection are reduced compared to higher wage levels.

Employers will be required to provide accurate wage and job information as part of the registration, including SOC code, area(s) of intended employment, and OEWS wage level.

If a beneficiary has multiple registrations at different wage levels, USCIS will allot the beneficiary to the lowest wage level among them.

DHS may also elect to suspend the registration process and allow employers to submit H-1B petitions and conduct a cap-subject selection process based on the petitions that are received.

The final rule is scheduled to be published on December 29, 2025.

Ogletree Deakins’ Immigration Practice Group will monitor developments with respect to these and other policy changes and will post updates on the Immigration blog as additional information becomes available.

Follow and Subscribe
LinkedIn | Instagram | Webinars | Podcasts