The new DHS rule replaces the purely random H‑1B cap lottery with a wage‑weighted selection system that significantly improves the odds for higher‑paid, higher‑skilled positions starting with the FY‑2027 cap season. Employers will need to adjust registration, wage, and compliance strategies now to remain competitive and avoid misrepresentation findings in future cap filings.

Key features of the new rule

• DHS will implement a weighted selection process for cap‑subject H‑1B registrations instead of the long‑standing random lottery, with the stated goal of better protecting U.S. workers’ wages and opportunities.
• The annual numerical limits remain 65,000 regular cap plus 20,000 U.S. advanced‑degree exemptions; what changes is how USCIS selects which registrations may file cap‑subject petitions.
• The final rule is scheduled to be published in the Federal Register as “Weighted Selection Process for Registrants and Petitioners Seeking to File Cap‑Subject H‑1B Petitions” and will take effect in 2026, first impacting the FY‑2027 cap registration cycle.

How the wage‑weighted selection works

• USCIS will continue to use a beneficiary‑centric model: each unique foreign national is treated as a single registrant, even if multiple employers file registrations for that individual.
• Each beneficiary is entered into the selection pool multiple times depending on the highest Occupational Employment and Wage Statistics (OEWS) wage level (I–IV) that the proffered wage meets or exceeds for the SOC code and work location.
• Current guidance from practitioners reflects the structure below, which is consistent across multiple analyses:
  • Wage Level I: one entry in the selection pool
  • Wage Level II: two entries
  • Wage Level III: three entries
  • Wage Level IV: four entries

This means higher‑wage positions will have a statistically greater chance of selection, while registrations at all wage levels technically remain eligible.

New registration and petition requirements

• At the electronic registration stage, employers must now provide:
  • Proffered wage;
  • Applicable SOC code;
  • Area of intended employment; and
  • The highest OEWS wage level that the proffered wage meets or exceeds.
• For beneficiaries with multiple work locations or, in the case of agents, multiple positions, the registrant must select the lowest OEWS wage level that the proffered wage will meet or exceed across all covered locations/roles.
• When filing the H‑1B petition, employers must submit evidence consistent with the registration, including the LCA, wage level analysis, and job details, to substantiate the wage level claimed at registration.

USCIS may deny or revoke petitions where it finds inconsistencies between the registration, LCA, and petition or determines that changes were made to unfairly increase selection odds.

Strategic implications for employers and beneficiaries

• Wage strategy and budgeting:
  • Employers offering Level I wages should anticipate a materially lower selection probability and may need to reassess salary ranges, especially for critical roles.
  • Analyses of the rule predict reduced selection likelihood for Level I by roughly half and substantial gains for Levels II–IV (with the largest increases at Level III–IV), so marginal increases in wage levels can have outsized impact on selection odds.
• Position classification and documentation:
  • Proper SOC classification and persuasive prevailing‑wage analysis become more important, as under‑leveling wages may not only reduce selection odds but also raise compliance questions.
  • Employers should ensure internal job descriptions, offer letters, LCAs, and petition narratives align on duties, requirements, and wage levels to withstand heightened scrutiny.
• Risk of fraud and misrepresentation findings:
  • Because selection weighting is tied directly to wage level, DHS has signaled a stronger enforcement posture against any attempt to artificially inflate wage levels at registration and then downgrade at petition or during employment.
  • Inconsistencies could trigger petition denial, revocation, or potential findings of willful misrepresentation, with downstream consequences for the employer and beneficiary.

Practical planning for upcoming H‑1B seasons

• For FY‑2027 and beyond, employers should begin now to:
  • Audit likely H‑1B roles, confirm appropriate SOC codes and OEWS wage levels, and model budgets for scenarios at wage levels II–IV.
  • Coordinate early between HR, finance, and legal to set wage structures that are competitive in the weighted selection environment and compliant with prevailing wage requirements.
• Foreign national candidates should:
  • Understand that the new system rewards higher wages and more senior roles and therefore consider career and negotiation strategies that increase their wage level prior to the relevant cap season.
  • Maintain accurate records of job duties, work locations, and compensation to support their employers’ filings and avoid inconsistencies during consular processing or later extensions.

This article is for general informational purposes only and does not constitute legal advice; employers and foreign nationals should consult experienced U.S. immigration counsel to evaluate how the new weighted H‑1B selection rule applies to their specific facts.