The Department of Homeland Security (DHS) has issued a Notice of Proposed Rulemaking (NPRM) to change the current H-1B visa lottery from a purely random selection process to a weighted lottery system that prioritizes applicants based on the wages offered by employers, thereby favoring higher-paid and higher-skilled workers.
Key Elements of the Proposed Weighted H-1B Lottery System
- Wage-Level Based Weighting:
The proposed system uses the Department of Labor’s Occupational Employment and Wage Statistics (OES) wage levels, which classify occupations into four wage tiers based on geographic location:
| Wage Level | Weight (Number of Lottery Entries) |
| Level I (Lowest Wage) | 1 entry |
| Level II | 2 entries |
| Level III | 3 entries |
| Level IV (Highest Wage) | 4 entries |
Applicants with job offers at higher wage levels would receive more “entries” in the lottery, thus significantly increasing their chances of selection relative to lower wage offer recipients 1 2 3 5.
- Beneficiary-Centric Registration:
The existing H-1B lottery rule is maintained of each H-1B beneficiary being limited to a single registration, preventing employers from submitting multiple registrations for the same person through different affiliates or petitioners. This ensures fairness and combats fraud.
- Additional Information Requirements:
Registrations must include detailed salary information and the applicable OES wage level. Employers must designate the lowest applicable wage level if multiple work locations or roles are involved to reduce opportunities for abuse via artificially inflated wage declarations 3 5.
- Impact:
The weighted H-1B lottery proposal has sparked controversy and is expected to face challenges. Critics argue that it may disadvantage smaller employers, certain critical fields such as healthcare, and international students who may find it more difficult to secure higher-paying sponsor positions. There are also legal questions about whether DHS has the statutory authority to alter the lottery selection process in this manner, with some immigration law experts asserting that the statute mandates random selection without wage-based weighting.
Timeline and Next Steps
- The NPRM was published on September 24, 2025. There is a 60-day public comment period ending on October 24, 2025, during which employers, universities, advocacy groups, and other stakeholders can provide feedback.
- After considering the comments, DHS will decide whether to finalize, revise, or abandon the proposed rule.
- If implemented, the weighted lottery could take effect for the Fiscal Year 2027 H-1B cap season lottery, with the first H-1B lottery run under the new system expected in March 2026.
Broader Context
This proposal complements other Trump-era immigration reforms targeting H-1B regulations, including a recently implemented $100,000 visa fee on certain H-1Bs. Combined, these efforts reflect a policy shift toward prioritizing higher-skilled foreign workers.
Alternatives to the H-1B visa, such as L-1 intracompany transfers, O-1 visas for extraordinary ability, TN visas, E-2 treaty investors and green card categories like the immigrant visa categories of the extraordinary ability visa petition (EB-1A) and the national interest waiver (NIW EB-2), remain viable alternatives amid these changes.
Please contact Attorney Monique Kornfeld for help with the H-1B lottery process or any alternatives.