Weighted Selection Process for Cap-Subject H-1B Petitions (DHS Final Rule)

Agency: Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS)
Document Number: 2025-23853
Type: Final rule implementing a revised H-1B cap selection process
Scheduled Publication Date: December 29, 2025
Pages: Approximately 303

• Encourage employers to offer higher wages and target more highly skilled roles;
• Mitigate concerns regarding the use of the H-1B program for lower-paid positions; and
• Maintain participation opportunities across all wage levels while still prioritizing higher-compensation roles.

This weighted system applies only in instances where registrations exceed the annual numerical cap.

Wage Level	Weighted Entries in Lottery
Level IV (Highest)	4 entries
Level III	3 entries
Level II	2 entries
Level I (Lowest)	1 entry

Under this structure, registrations associated with higher wage levels receive proportionally more “chances” in the lottery compared with lower-wage registrations. While the process remains a lottery, the probability of selection is weighted according to wage level rather than being uniform.

Importantly:

• Each beneficiary may only be counted once toward the H-1B cap, regardless of how many registrations are filed on their behalf.
• The rule does not affect numerical cap limits, eligibility criteria, or the ability of lower-wage roles to participate in the lottery.

• Incentivizing higher wages: By weighting registrations according to wage level, employers are encouraged to offer competitive salaries.
• Targeting higher skill levels: The system aims to favor beneficiaries in more specialized, highly compensated positions.
• Maintaining participation for all wage levels: Lower-wage roles continue to be eligible for selection, though with fewer weighted entries.
• Aligning with statutory intent: The weighted approach seeks to reduce misuse of the H-1B program for lower-paid roles that may displace U.S. workers.

DHS has clarified that the weighting system is intended as a proxy for skill and labor market value, rather than a “pay-to-play” mechanism.

• Complexity and fairness concerns: Some commenters argued that weighting adds complexity or may be unfair. DHS responded that the system increases predictability and better aligns selection outcomes with program goals.
• Impact on entry-level workers and startups: DHS stated that all wage levels remain eligible and that lower-wage positions retain a chance of selection.
• Geographic wage inequities: DHS explained that OEWS wage data already account for regional differences in compensation.
• Effects on innovation and mobility: DHS maintained that prioritizing higher wage levels aligns with congressional intent, benefits competition, and enhances worker protections.

• The statutory annual H-1B cap;
• Eligibility requirements for beneficiaries; or
• Selection opportunities for lower-wage registrations (although their probability of selection is lower than higher-wage registrations).

7. Practical Implications

For Employers:

• Employers may need to review and potentially adjust wage offers to optimize selection chances in the weighted lottery.
• Positions associated with higher OEWS wage levels will receive multiple entries in the lottery, increasing the statistical likelihood of selection.

For Beneficiaries:

• Beneficiaries tied to higher-wage positions will generally benefit from a higher probability of selection.
• Entry-level or lower-paid roles remain eligible but have fewer weighted entries, reducing—but not eliminating—their odds.

Market-Level Effects:

• The rule may influence wage-setting, job classification, and employer strategies in recruitment and H-1B demand planning.
• Over time, the weighted system is expected to promote higher wage offerings and align the H-1B program more closely with labor market considerations.