On September 24, 2025, the Department of Homeland Security (DHS) published a proposed rule that would significantly alter the annual cap-subject H-1B lottery selection process, replacing the current randomized lottery with a wage-based weighted system. This change would give priority to higher-paid workers in the annual allocation of H-1B visas under the cap.
If the proposed rule becomes a final rule, it would prioritize the selection of H-1B cap-subject registrations based on the wage level offered to the prospective H-1B candidate, assigning more weight to those offered higher wage levels as defined by the Department of Labor’s (DOL) Occupational Employment and Wage Statistics (OEWS). Under the proposed rule, beneficiaries offered a position at the highest wage level (Level 4) would receive four entries in the lottery pool, whereas those offered a position at a normal entry-level wage (Level 1) would receive only one.
Clearly, the proposed rule would unfairly advantage the “hyperscaler” technology companies at the epicenter of the AI boom (e.g.; Amazon, Tesla, Google, Microsoft) who can offer higher level wages to their H-1B candidates, while distinctly disadvantaging early-career professionals, recent graduates, and employers in other industries. Moreover, the proposed rule relies on DOL wage levels as a proxy for skill, which may not accurately reflect the qualifications of foreign workers or the complexity of the proffered position. Additionally, the proposed rule would impose new obligations on petitioning employers during the H-1B registration process which do not exist under the current lottery system. For example, sponsoring employers would be required to certify the occupational code, wage level, and work location for each H-1B cap registration. In cases where a single beneficiary has multiple registrations from separate petitioning entities, the lowest wage level among all registrations would be used to determine the candidate’s selection weighting thus, introducing variables in the process which are outside of any one petitioning employer’s control.
For key details of the proposed H-1B Cap Selection change click here.
If you have any questions please contact: Anthony F. Siliato, Scott R. Malyk, Lin R. Walker, or Stacey A. Simon.