DHS Publishes Notice of Proposed Rulemaking That Would Modify the H-1B Lottery Selection Process

Modification of H-1B Lottery Selection to Increase Odds of Selection for Highest Paid Beneficiaries

On September 24, 2025, the U.S. Department of Homeland Security (DHS) published a Notice of Proposed Rulemaking (NPRM) at 90 Fed. Reg. 45986 (09/24/2025) entitled Weighted Selection Process for Registrants and Petitioners Seeking to File Cap-Subject H-1B Petitions. The NPRM proposes moving toward a weighted selection process for H-1B cap cases.

Under the proposed system, employers would be required to enter the following new data during the H-1B registration process:

If the beneficiary will work at multiple different worksite locations, the NPRM instructs registrants to enter only the location with the lowest wage level assigned. For example, if a software developer making $175,000 will work in two different cities, and in one of those cities their salary would be a Level II wage and the other it would be a Level IV wage, the petitioner would list only the city for which it would be a level II wage and state in the registration that it’s a level II wage.

In addition, if a beneficiary has multiple registrations filed on her behalf by different employers, U.S. Citizenship and Immigration Services (USCIS) will assign her registration to the wage level that is the lowest of all the registrations received on her behalf.

Under the new system, beneficiaries’ registrations will be given extra weight if they will be paid at higher wage levels. Those who will be paid a Level I wage will be entered into the lottery once; those who will be paid a Level II wage will be entered twice; those who will be paid a Level III wage will be entered three times; and those who will be paid a Level IV or higher wage will be entered four times. Although the beneficiary will be counted against the numerical cap only once, they will have a greater chance of selection if at a higher wage level. USCIS will also preserve the current beneficiary-centric selection process, such that beneficiaries will not increase their odds of selection by having multiple employers register them in a given year.

The NPRM contemplates that employers may offer a higher wage level than is required under the prevailing wage guidance in order to increase odds of selection. Nor does the NPRM discourage doing so.

DHS also notes that if an amended petition is later filed, USCIS will examine whether the petitioner appears to be gaming the system by placing the beneficiary in a location with lower prevailing wages, and may deny the petition as a result, but not if the beneficiary is paid a comparable wage level for the location to which they are moved. However, USCIS may in its discretion determine that a change in the area of intended employment is permissible, provided that it is consistent with the bona fide job offer in existence at the time of the registration.

The NPRM does not address one important implication of the proposed changes. Namely, what happens if there is a second round of lottery selections after July 1. Each year, the U.S. Department of Labor publishes new prevailing wage data on July 1 which remains in effect until June 30 the following year. H-1B lottery registrations are typically filed in March each year, and the initial round of H-1B selections is concluded no later than March 31. The cases selected in the initial round of the lottery may then file their petitions between April 1 and June 30. However, USCIS has conducted a second round of lottery selections almost every year since they began the electronic registration process for H-1Bs in 2020.

A second round of selections is conducted when an insufficient number of petitions were filed and approved from the initial round of lottery selections. When a second round is conducted, registrations are selected from the initial lottery pool and selected registrants are given another 90-day window to file cap petitions. That window will always begin after July 1, when new prevailing wage data will be in effect. It is unclear from the NPRM how the change in prevailing wage data will impact the selection process, if at all, for those who file petitions after July 1.