The Department of Homeland Security (DHS) published a final rule implementing a significant change to the H-1B visa cap lottery selection process that is to be used when demand exceeds the annual numerical limits of the H-1B visa program. It will replace the randomized computer lottery with a weighted selection process that will generally favor the allocation of cap-subject H-1B petitions to higher-paid workers.
Background: The Traditional H-1B Lottery
Each fiscal year, USCIS makes available currently 65,000 regular cap numbers plus an additional 20,000 for beneficiaries with U.S. master’s degrees or higher. Until now, USCIS has relied on a purely random lottery to select registrations for filing, regardless of wage level or type of position.
Foreign nationals H-1B registrants can be entered in multiple subsequent H-1B lotteries if they are not selected in any one year.
What Is the New Weighted Selection Rule?
Under DHS’s new rule, H-1B registrations will still be subject to a selection process when the cap is exceeded, but registrations will no longer be chosen entirely at random. Instead, USCIS will assign weights to registrations based on the prevailing wage level (assigned by the Department of Homeland Security) associated with the offered position.
Registrations tied to higher wage levels will receive greater weight, increasing their likelihood of selection, while lower-wage positions will have a reduced chance. DHS has emphasized that this is not a strict ranking system but rather a probabilistic model that favors higher wages while still allowing lower-wage registrations to be selected.
In particular, the final rule states that the registrant must select the highest wage level that the beneficiary’s offered wage equals or exceeds for the relevant occupational code for the worksite.
The final rule then notes how it will select an H-1B registrant in the H-1B lottery:
USCIS will assign each unique beneficiary to the lowest wage level among all registrations submitted on the beneficiary’s behalf and will enter each unique beneficiary into the selection pool in a weighted manner as follows: a beneficiary assigned wage level IV will be entered into the selection pool four times, a beneficiary assigned wage level III will be entered into the selection pool three times, a beneficiary assigned wage level II will be entered into the selection pool two times, and a beneficiary assigned wage level I will be entered into the selection pool one time
Impact on Employers
The new rule is expected to have far-reaching implications for employers, particularly for startups and smaller employers. Such employers rely on all levels of professionals to maintain and grow their businesses.
Looking Ahead
The H-1B weighted lottery is likely to face legal challenges and policy scrutiny, particularly given prior court decisions invalidating similar regulatory attempts. Employers should closely monitor implementation guidance from USCIS and prepare for changes in registration strategy for upcoming H-1B cap seasons.
As with any regulatory shift, early planning and careful wage analysis will be critical.