DHS Changes H-1B Cap Lottery To Wage-Based Weighted Selection Process

The U.S. Citizenship and Immigration Service (“USCIS”) has just announced their final rule “Weighted Selection Process for Registrants and Petitioners Seeking to File Cap-Subject H-1B Petitions” which will become effective on February 27, 2026 and will apply to the upcoming (FY2027) H-1B cap registration season.    The new rule changes in substantial ways the method by which H-1B registrations for the annual numerical caps are selected, moving away from a purely random lottery to a system favoring higher wages and skills.

H-1B Lottery Selection Weighting Based on Offered Wage Level

Under the final rule (which is unchanged from the September 2025 proposed rule), the H-1B “cap” selection will be given weight based on each beneficiary’s wage level under the Occupational Employment and Wage Statistics (OES).    The relevant wage level is determined by identifying the highest wage level that the beneficiary’s future H-1B offered wage would equal or exceed for the relevant occupation and area(s) of future H-1B intended employment.

Assuming the number of H-1B “cap” registrations exceeds the number of available new H-1B visas (total of 85,000) and a lottery is required,  each unique H-1B beneficiary will be entered into the lottery pool in a weighted manner based on their wage level as follows:

As a result,  an H-1B candidate who is offered a salary consistent with Wage Level IV for their position and area of employment, will have 4 times higher chance of selection compared to a Wage Level I candidate.  It should  be noted that each unique beneficiary is counted only once towards the lottery pool even if they have different chance of selection based on the weighted selection multiplier.

Integrity Measures

USCIS will incorporate a number of “integrity measures” to prevent manipulation of the selection process and to unfairly increase chances of selection.

Wage Level Selection.    The H-1B registrant employer must select the highest wage level that the beneficiary’s future H-1B wage will exceed.

SOC Code and Worksite Location.   Because there is wide variety in wage levels among various SOC position codes and geographic worksite locations, USCIS requires registrants to provide accurate position and worksite information at the time of lottery registration.

If there are multiple locations or multiple positions, the H-1B registrant employer must select the lowest equivalent wage level among these locations or positions.   This is intended to prevent employers from adding a lower level position or placing a candidate to work at a lower cost of living area solely to obtain a lower salary level obligation while maintaining high selection multiplier.    Similarly, if there are multiple registrations by multiple employers, the individual candidate will be assigned the lowest wage level offered by the multiple employers.

Bona Fide Job Offer.   USCIS may deny or revoke a petition if they determine that the employer has attempted to “unfairly increase the odds of selection” by, for example, offering a high wage level for the lottery and later reducing it in a subsequent amendment.   It is unclear if this will include subsequent H-1B “transfer” petitions to an employer with substantially lower salary.

Information Consistency Requirements Between Lottery Registration and Selected H-1B Petition Submission

The initial registration will require employers to provide the wage level of the offered position, in addition to the SOC code of the offered position and the area of intended employment, in addition to other identifying information currently required such as name and passport number.

Practical concern:  This change will require employer to do a much more extensive position analysis very early in the H-1B cap process.   Under the current rule, the employer does not have to finalize the job offer and the position (salary, job description, and worksite area) until H-1B cap lottery selection; under the new rule this information and the corresponding OES prevailing wage analysis will have to be done much earlier and before the H-1B registration is completed.

If a registration is selected, the subsequent H-1B cap-subject petition filing with USCIS must use consistent information with what was included in the registration.    Specifically, the offered salary must equal or exceed the prevailing wage level indicated on the registration.    Similarly, the position and worksite area(s) must match the petition; while minor changes are likely not going to be an issue but significant changes such as different job description, salary or worksite area may be scrutinized.

Practical concern:  employers will not only have to do early SOC/wage level analysis for the lottery submission in February or March, but they will face uncertainty with respect to their actual wage obligation in cases where the H-1B cap selected petition is filed after July 1 (which is when the prevailing wage amounts and levels get updated).   So, an employer who files an H-1B registration in March may not know exactly what minimum salary they will need to offer for an H-1B petition that is selected in case this petition ends up being filed after July 1 (generally, this is the case for H-1B registrations selected under a second or subsequent H-1B lottery rounds).

As noted above, if USCIS determines that an employer or affiliated entity files a subsequent H-1B petition such as amendment or extension for the same beneficiary with significantly different terms of employment (such as lower salary in a lower wage level), they may view this as an unfair increase of the chances of selection and seek to revoke the initial H-1B cap petition (which will make the beneficiary no longer cap-exempt).

Changes in Selection Probability Compared to the Current Random Lottery Selection System

According to USCIS,  the weighted selection process will dramatically change the likelihood of being selected compared to the current purely random process, where every unique beneficiary currently has an equal chance of being selected (estimated at 29.59% for all levels).

Attorney Assistance with H-1B Cap Preparation and Submission

Our office will be happy to provide consultations or assistance with preparing and submitting petitions H-1B cap petitions.

We offer flat fees to handle the entire application and you can contact us or request a flat fee quote. Alternatively, if you would like to schedule a consultation with an attorney to discuss a specific case (but perhaps without engaging us to help with the actual filing ), we offer phone consultations.

Conclusion

We will be monitor very closely any developments on this topic.  Please do not hesitate to contact us if we can be of any help in understanding or dealing with this change and please subscribe to our free weekly newsletter to obtain further news and developments on this topic.