DHS Issues Proposed Regulation Changing the Selection Process for H-1B Cap Registrations Starting in March 2026

On September 24, 2025, the U.S. Department of Homeland Security (DHS)  published a rule 

outlining a weighted selection process for the H-1B cap lottery. The proposed process would favor the allocation of H-1B visa petitions to higher skilled and higher paid foreign national employees, and claims that it will maintain the opportunity for employers to secure H-1B workers at all wage levels. The rationale for this proposal is that DHS believes that salary generally is a reasonable proxy for skill level. 

The proposal argues to differentiate itself from the 2021 H-1B Selection Final Rule, stating that the 2021 Rule effectively left little or no opportunity for the selection of lower wage level or entry level workers. Here, the proposal argues that by engaging in a wage-level-based weighting of registrations for unique beneficiaries, DHS would better ensure that initial H-1B visas and status grants would more likely go to the highest skilled or highest paid beneficiaries, while not effectively precluding those at lower wage levels. 

This proposal has the following essential changes: 

Proposed Rule Provisions	Description of the  Proposed Change to  Provisions
Required Information on the Registration	A registrant (Employer) would be required to select the box for the highest OEWS wage level that the beneficiary’s wage generally equals or exceeds and also would be required to provide the SOC code for the proffered  position and the area of intended employment that served as the basis for the OEWS wage level indicated on the registration.
Weighting and Selecting Registrations (or petitions if registration is suspended)	DHS proposes to implement a wage-based selection process that would operate in conjunction with the existing beneficiary-centric selection process for registrations. When there is random selection USCIS  would enter each unique beneficiary (or petition, as applicable) into the selection pool in a weighted manner, wherein a beneficiary (or petition) assigned wage:  level IV would be entered into the selection pool four times;   level III, three times;  level II, two times; and  level I, one time.
Required Information on the Petition	The information required for the registration process would also be collected on the petition. Petitioners would be required to submit evidence of the basis of the wage level selected on the registration as of the date that the registration underlying the petition was submitted.
Process Integrity	The proposed rule would require an H-1B petition filed after registration selection to contain and be supported by the same  identifying information and position information including OEWS wage level, SOC code, and area of intended employment  provided in the selected registration and indicated on the LCA used to support the petition. The proposed rule would also allow  USCIS to deny a subsequent new or amended petition or revoke  an approved petition if USCIS were to determine that the filing of the new or amended petition was part of the petitioner’s attempt to unfairly increase odds of selection during the registration.

Written comments to the Proposed rulemaking (NPRM) must be submitted by October 24, 2025, for consideration.  A second deadline of November 24, 2025, is listed and this second deadline references the registration tool and the H-1B petition forms and the data required for these submissions.  The electronic Federal Docket Management System will accept comments before midnight Eastern time at the end of each referenced day. 

We will continue to provide updates as they occur.