The Department of Homeland Security (DHS) has issued a Notice of Proposed Rulemaking (NPRM) to replace the purely random H-1B cap lottery with a wage-weighted selection that favors higher-paid, higher-skill positions—while still leaving chances for all wage levels. The rule would keep the beneficiary-centric protections (each person can only be selected once regardless of how many employers register them) and preserve the two-step cap order (Master’s cap first, then Regular cap). Public comments are invited; DHS signals earliest implementation for FY 2026 filings.
Why DHS Is Proposing This?
DHS notes that demand for H-1B visas has exceeded the cap for more than a decade, and that the current random approach does not align well with the program’s goal of facilitating admission of highly skilled workers. The NPRM therefore proposes a weighted selection tied to the Department of Labor’s (DOL) Occupational Employment and Wage Statistics (OEWS) levels for the job and location.
Current vs. Proposed Selection
Today’s Process (unchanged until a final rule)
Two draws:
- Advanced Degree Exemption (Master’s cap – 20,000)
- Regular Cap (65,000)
Every registered beneficiary has an equal chance of selection in the second cycle, regardless of their offered wage, skill level, or position requirements. The process is beneficiary-centric, meaning each person can only be selected once even if multiple employers register them. This random approach has been in place since the registration system launched, treating a software engineer offered $250,000 the same as an entry-level analyst offered $60,000. The selection probability has been around 30%.
Proposed Wage-Weighted Process
- Still beneficiary-centric (one selection per person).
- Applies in both the Master’s cap draw and the Regular cap draw.
- Weighting by OEWS level and job location of intended employment:
- Level IV (highest skilled/paid): 4 entries in the selection pool (~61% selection probability)
- Level III: 3 entries in the selection pool (~46% selection probability)
- Level II: 2 entries in the selection pool (~31% selection probability)
- Level I (entry level): 1 entry in the selection pool (15% selection probability)
Illustrative odds (example only): If overall selection were ~30% (like recent cycles), proportional weighting implies approximate selection chances referenced above; these are purely illustrative and dependent on actual registration volumes and wage-level mix.
Key Mechanics to Know
- Which wage level counts? The NPRM ties weighting to the highest OEWS wage level the offered wage meets or exceeds – but for multi-location roles or multiple registrations, the lowest applicable level governs to prevent gaming.
- If no OEWS data: Employers must derive the appropriate level using DOL prevailing-wage guidance.
- Registration & petition integrity: DHS pairs weighting with documentation requirements (e.g., SOC code, area of intended employment) to minimize abuse.
Timeline & Public Comment
- Publication: Scheduled for the Federal Register on Sept. 24, 2025.
- Comment period:
- 30 days for comments on the NPRM text.
- 60 days for comments on associated information collections (forms).
- Earliest practical start: FY 2026 cap season (e.g., March 2026 registration), subject to the final rule’s timing and content.
Practical Takeaways for Employers & Beneficiaries
- Budgeting & offers: Higher offered wages (relative to OEWS for the job/location) improve selection odds under the proposed system.
- Role design: Job requirements and compensation strategy should align with OEWS levels and genuine business need.
- Documentation readiness: Expect closer scrutiny of SOC codes, locations, and wage support; align registrations with the actual position and wage.
- Watch for final text: Details may shift after public comments; plan for adjustments in FY 2026 strategies.
Source
DHS NPRM: “Weighted Selection Process for Registrants and Petitioners Seeking to File Cap-Subject H-1B Petitions” (to be published Sept. 24, 2025).
