DHS Proposes Weighted H-1B Lottery Based on Wage Level

On September 24, 2025, the Department of Homeland Security (DHS) published a Notice of Proposed Rulemaking (NPRM) that would fundamentally change how H-1B cap registrations are selected. Under the current system, when registrations exceed the annual limit of 85,000 H-1B cap numbers (including 65,000 under the regular cap and 20,000 under the master’s cap), selections are made through a completely random lottery process.

Under the proposal, each lottery registration would need to indicate:

• SOC code that would be used on the LCA filed with the H-1B petition, if selected;
• Area of intended employment; and
• Occupational Employment Statistics (OES) wage level (I – IV) corresponding to the offered salary (which must meet or exceed that prevailing wage level).

A certified Labor Condition Application (LCA) would not be required at the registration stage. However, H-1B petitions would need to include evidence of the basis of the wage level selected on the registration, such as a printout from the DOL’s Wage Search website or similar documentation.

If the H-1B beneficiary will work in multiple locations, the lowest equivalent wage level among those locations must be used for registration purposes.

Each unique beneficiary would be entered into the selection pool a number of times corresponding to the OES wage level assigned on the registration. In other words, the higher the wage level, the greater the number of “entries” or chances in the lottery:

• Level IV (classified as “fully competent”) – 4 entries into the selection pool
• Level III (classified as “experienced”) – 3 entries into the selection pool
• Level II (classified as “qualified”) – 2 entries into the selection pool
• Level I (classified as “entry-level”) – 1 entry into the selection pool

USCIS would run the Regular Cap selection first using this weighted process, followed by the Master’s Cap using this weighted process.

Estimated Impact and Practical Implications

According to DHS, under the proposed system, the probability of being selected in the H-1B cap lottery would decrease by 48% for Level I positions, increase by 3% for Level II positions, increase by 55% for Level III positions, and increase by 107% for Level IV positions. If finalized, the rule would strongly favor higher-wage H-1B offers, incentivizing employers to register positions classified at higher wage levels.

Although the proposed rule is intended to favor higher-paid positions, supposedly targeting the “best and brightest” for H-1Bs, the proposal leaves room for registrants to influence the assigned wage level and thus the chances of lottery selection. Employers have some discretion (within legal bounds) to define a position’s title, job duties, SOC code, and geographic area of employment. Employers should begin reviewing job classifications, prevailing wage data, and worksite arrangements to assess how the proposed weighting system could affect selection odds.

Because the wage level indicated in the registration must be documented and consistent with the eventual petition filed with USCIS, employers should exercise care when strategizing the SOC code and work location(s) for the H-1B position, particularly where multiple worksites are involved.

Finalization Process for this Proposed Rule

Although the public comment period for the proposed rule itself closed on October 24, 2025, DHS is still accepting comments through November 24, 2025, on the associated information collection requirements under the Paperwork Reduction Act. After the comment period closes, DHS will review public feedback, make any revisions, and submit a final version to the Office of Management and Budget for review. Once cleared, the Final Rule will be published in the Federal Register with an effective date. likely in time for the FY 2027 H-1B cap season. However, further administrative review or litigation could delay implementation of a final rule.

If you have any questions, please contact your McCown & Evans attorney.