On Wednesday, September 24, 2025, the DHS proposed a rule that, if implemented, would affect how U.S. Citizenship and Immigration Services (USCIS) selects individuals for H-1B visas. The rule, which is now open for public comments, proposes a new system that is intended to increase the likelihood of selection of higher-paid foreign employees by equating compensation with skill. If finalized, the rule would go into effect 60 days from its publication date, possibly in time for next year’s fiscal lottery.
As the H-1B visa category has been oversubscribed for many years, USCIS conducts an annual lottery to determine which employers and beneficiaries receive these visas, subject to an annual quota. Over the years, the lottery has evolved. In March 2020, USCIS began an electronic registration process to conduct the lottery in lieu of requiring employers to submit a petition. Additionally, in 2019, USCIS changed the order in which the lottery was conducted to increase the likelihood that individuals with advanced degrees from the U.S. would be selected.
Key Details of the Proposed Rule
Specifying the Wage to be Paid
As part of the selection and ranking process under the proposed rule, individuals registering would check a box showing which wage level (choosing one of four wage level options) matches or exceeds the worker’s offered wage for that job type and location. Individuals would also need to provide the job code (SOC code) and the location where the job will be performed. This information and other required details must follow the form instructions. The offered wage, job code, and job location must also be included in the Labor Condition Application (LCA) that is sent with the petition.
The proposed rule states that if a worker plans to have more than one job location, or more than one job position, they must choose the lowest matching wage level. The intention is to prevent employers and beneficiaries from picking locations or jobs that make the wage appear higher. There are similar proposed rules for those employers who use a wage range, rather than one specific wage.
Weighted Selection Process
If more people register than the H-1B visa limit allows, USCIS will use a weighted lottery system based on each person’s offered wage level:
- Wage Level IV: entered four times
- Wage Level III: entered three times
- Wage Level II: entered two times
- Wage Level I: entered one time
The intention is to give beneficiaries with higher-paying jobs a better chance of being selected. Even if an individual is entered more than once, that individual can only be chosen one time. The final selection will still be performed by random computer selection.
If not enough individuals register to meet the H-1B cap during the typical 14-day registration period, USCIS will select all properly submitted registrations regardless of wage level. USCIS will continue accepting registrations until they have enough individuals to meet the expected number.
If there are more properly submitted registrations on the final registration date than the H-1B cap allows (which is the historical pattern), USCIS will use the weighted lottery process based on offered wage levels.
Advanced Degree Petitioner Selection
After filling the 65,000 slots, USCIS will use the same weighted lottery system for the advanced degree exemption. If enough beneficiaries with U.S. advanced degrees are registered during the initial sign-up period to meet the limit, USCIS will select from them using the same wage-based system.
If not enough advanced degree holders register during the main sign-up period, USCIS will accept all properly submitted registrations, no matter the wage level, until they reach the exemption limit. If more people are registered on the final date than needed, USCIS will use the weighted lottery.
Possible Cessation of the Registration Process
Prior to the current registration system’s implementation for fiscal year 2021 (under President Trump’s first term), petitioners were required to file complete petitions by April 1, which were then randomly selected. Throughout the 105 pages of the proposed rule, there are multiple suggestions that the registration system could be paused in the future.
If the electronic registration system is paused, DHS suggests that USCIS would review each petition and assign it a wage level based on form instructions. If USCIS receives more petitions on the final day than needed to meet the visa limit, they would use the same weighted lottery system, providing escalated multiple entries for wage levels higher than Wage Level I.
Filing a Petition if Selected During the Registration Process
Unless the registration process is paused, an employer can only file an H-1B petition for a worker if they are selected through the registration system. This rule applies to workers who count toward the H-1B visa cap or qualify for certain exemptions.
The H-1B petition must include the same information that was in the selected registration: the worker’s name, job details, SOC code, and offered wage. This information also must match what was in the LCA used to support the petition. The offered wage in the petition must be equal to or higher than the Department of Labor’s prevailing wage for that job and wage level in the area where the worker will be employed.
The registration form only requires one job location to be listed — specifically, the one with the lowest wage level. However, the full petition must list all the places where the individual will be working. If the location listed in the petition is different from the one in the registration, USCIS may allow the change — but only if it still matches a real job offer that existed at the time of registration.
Conclusion and Impact of the Rule
The proposed rule introduces significant changes to the H-1B registration and selection process by incorporating wage levels as a key factor in determining selection priority. By requiring registrants to indicate the highest wage level that their offered position meets and tying this to a weighted lottery system, the rule aims to favor higher-wage job offers – equating compensation with skill.
The biggest impact of this change, if implemented, will be felt by employers hiring and sponsoring entry-level workers for H-1B visas, as these positions often tend to be on the lower end of the wage scale. However, the adoption of a wage-based system may be grounds for a legal challenge to the rule, as the Immigration and Nationality Act references selection of H-1Bs in the order they were submitted.
This proposed rule, if implemented, would significantly change the lottery selection process. Barnes & Thornburg will provide updates as additional clarity becomes available.