Comprehensive Legal Analysis of DHS’s Final Regulation Effective February 27, 2026
On December 29, 2025, the Department of Homeland Security (DHS) published a Final Rule in the Federal Register establishing a weighted selection process for H-1B cap-subject registrations. The rule, codified at 90 Fed. Reg. 60,864 (Dec. 29, 2025) and to be incorporated at 8 C.F.R. § 214, replaces the longstanding random lottery system with a wage-based weighted selection methodology beginning with the FY2027 H-1B cap season.
This regulatory change becomes effective February 27, 2026, and fundamentally alters the manner in which USCIS will allocate H-1B cap numbers. The weighted selection process applies to cap-subject registrations submitted during the FY2027 registration period and thereafter.
The rule stems from DHS’s earlier Proposed Rule published at 90 Fed. Reg. 45,986 (Sept. 24, 2025) and reflects DHS’s policy objective of prioritizing higher-wage positions within the H-1B allocation process.
I. FY2027 Registration Timeline and Procedural Framework
On January 30, 2026, USCIS announced that the FY2027 H-1B registration period will:
- Open: 12:00 noon ET on March 4, 2026
- Close: 12:00 noon ET on March 19, 2026
- Selection Notifications: By March 31, 2026
- Petition Filing Window: April 1, 2026 through June 30, 2026
Registrations will continue to be submitted electronically through the myUSCIS online portal, and the registration fee remains $215 per beneficiary.
Notably, USCIS continues to operate under a beneficiary-centric selection system, meaning selection is made for the beneficiary, and all registrants for that beneficiary will be notified if selected.
II. Structure of the Weighted Selection Process
Under the Final Rule, each unique beneficiary will be entered into the selection pool based on the highest Occupational Employment and Wage Statistics (OEWS) wage level that the proffered wage exceeds, up to a maximum of four entries.
Weighted Entry Allocation
- Level I Wage: 1 entry
- Level II Wage or higher: 2 entries
- Level III Wage or higher: 3 entries
- Level IV Wage or higher: 4 entries
Each beneficiary receives at least one entry. Additional entries are awarded for each OEWS wage level exceeded by the offered salary.
The practical consequence is clear: higher wages increase statistical probability of selection.
III. Illustrative Example of Wage Weighting
The Practice Pointer provides an example using a Software Developer (SOC 15-1252.00) in San Francisco County, California.
OEWS Prevailing Wage Data
- Level I: $135,699
- Level II: $161,637
- Level III: $187,574
- Level IV: $213,512
Application of the Weighted Rule
- $145,000 → 1 entry (Exceeds Level I only)
- $175,000 → 2 entries (Exceeds Level II)
- $205,000 → 3 entries (Exceeds Level III)
- $235,000 → 4 entries (Exceeds Level IV)
This example demonstrates how wage level directly impacts selection weighting.
IV. Critical Distinction: Weighted Registration Wage vs. LCA Prevailing Wage
The Final Rule clarifies that the OEWS wage determination used for lottery weighting is not the same as the prevailing wage determination required for Labor Condition Applications (LCAs).
- Weighted Wage Level → Lottery Entry Only
- LCA Prevailing Wage → DOL Compliance Requirement
Nothing in the Final Rule modifies LCA procedures. Employers must still conduct an independent prevailing wage analysis when filing the LCA.
V. The “Lowest Wins” Rule and Anti-Manipulation Safeguards
DHS introduced strict safeguards to prevent wage manipulation.
- A. Multiple Worksites
Registrations must use the lowest applicable wage level across all locations. - B. Multiple Employers
If multiple registrations exist, USCIS assigns entries based on the lowest wage level submitted. - C. Wage Ranges
The lowest wage in the range determines weighting. - D. Alternative Wage Surveys
Below OEWS Level I → Only one entry - E. Absence of OEWS Data
Employers must document the methodology used.
VI. Expanded Registration Requirements
Employers must now:
- Identify the correct SOC code
- Specify intended employment area(s)
- Attest to the offered wage
- Select the weighted wage level
- Maintain supporting documentation
- Provide consistent beneficiary information
- Attest the job offer is bona fide
Discrepancies may result in denial or enforcement action.
VII. Form I-129 Consistency and Adjudicatory Scrutiny
Petitions must align with registration data.
Required Disclosures Include:
- Education requirements
- Field(s) of study
- Experience requirements
- Special skills
- Supervisory duties
- SOC code
- Wage level
Mismatch → Possible rejection or denial.
VIII. Documentation and Record Preservation
USCIS encourages retaining:
- OFLC Wage Search printouts
- SOC classification evidence
- Wage survey documentation
Wage data fluctuations make documentation critical.
IX. Compliance Risks and Enforcement Exposure
Potential risks include:
- RFEs / NOIDs
- Site investigations
- LCA audits
- Petition denial / revocation
- Fraud allegations
Heightened scrutiny may arise where wage or worksite inconsistencies exist.
X. Operational Impact on Employers
Employers must now conduct wage analysis before registration.
Key adjustments:
- Advance job drafting
- SOC verification
- Worksite confirmation
- Wage documentation protocols
XI. Outstanding Questions
Unresolved issues include:
- Stakeholder engagements
- RFE triggers
- Documentation retention rules
- Litigation impact
Conclusion
The FY2027 H-1B cap season marks a fundamental shift toward wage-weighted prioritization. While incentivizing higher wages, it significantly increases compliance complexity.
Employers must adopt proactive legal strategy, rigorous documentation, and internal coordination well before the registration period.
