Originally Posted: 8/11/2025 | Last Updated: 9/29/2025
The Department of Homeland Security (DHS) has published a rulemaking proposing a significant change in how H-1B registrations are selected in the annual cap lottery. The rule, titled “Weighted Selection Process for Registrants and Petitioners Seeking to File Cap-Subject H-1B Petitions”, seeks to implement a weighted selection process that would favor the allocation of H-1B visas to higher skilled and higher paid workers. We summarize these potential changes and the estimated impact below.
Current Selection Process: Under the current H-1B lottery process, each unique beneficiary is given an equal chance of selection regardless of how many employers register on their behalf and regardless of the offered wage. The chances of selection under the current system is approximately 30% for all beneficiaries.
Proposed Weighted Selection Process: Under the proposed method of selection, lottery registrations would be weighted based on the wage level of the offered H-1B position, giving higher-skilled and higher-paid workers a better chance of being selected in the lottery. Specifically, registrations would be weighted as follows:
- Wage Level 1 registrations (representing entry level positions) would be entered once.
- Wage Level 2 registrations (positions requiring qualified workers) would be entered twice.
- Wage Level 3 registrations (positions requiring experienced workers) would be entered three times.
- Wage Level 4 registrations (positions requiring fully competent workers) would be entered four times.
Under the current selection process, each unique beneficiary has a roughly 30% chance of being selected in the H-1B lottery. Under the proposed weighted selection process, DHS estimates the probability of being selected under each wage level to be as follows:
- Wage Level 1 – 15.29% chance of being selected.
- Wage Level 2 – 30.58% chance of being selected.
- Wage Level 3 – 45.87% chance of being selected.
- Wage Level 4 – 61.16% chance of being selected.
The proposed new method maintains a beneficiary-centric selection process, with each beneficiary only entered once regardless of how many employers register them in the lottery. However, under the weighted selection system, each unique beneficiary would be assigned the lowest wage level among all registrations submitted on their behalf. For example, a beneficiary for whom a level 1 registration and a level 4 registration have been submitted would be assigned to wage level 1 for the purpose of weighted selection.
Next Steps in Rulemaking Process: Comments on the NPRM must be submitted by October 24, 2025. Comments on the associated form updates will be accepted through November 24, 2025. We provide instructions below for anyone who wishes to submit a comment on the proposed rule.
Once the notice and comment period is concluded, USCIS will review and respond to such comments before submitting a Final Rule for OMB review and publication in the Federal Register. If adopted, the Final Rule would likely be effective within 30-60 days from the date of publication in the Federal Register. While the exact timeline is unknown at this point, it is possible the proposed rule will be made final and effective prior to registration for the Fiscal Year 2027 H-1B cap. However, legal challenges could also delay its effective date.
Instructions for Submitting Comments on Proposed Rulemaking
The rulemaking process provides an opportunity for individuals, businesses, and other concerned parties to influence new rules by expressing their concerns, questions, and issues during the notice and comment period. Before publishing a final rule, the agency must review and respond to each unique comment, including making any necessary clarifications or changes to the final rulemaking. Follow the instructions below if you wish to submit a comment expressing concern or support for any aspect of this rulemaking.
To submit a comment on this rulemaking, visit: https://www.regulations.gov.
- Enter the docket number into the search bar: USCIS-2025-0040
- Scroll to find the proposed rule titled, “Weighted Selection Process for Registrants and Petitioners Seeking to File Cap-Subject H-1B Petitions” and click “Comment”.
- Enter your comment into the text box or upload a file.
Tips for drafting an effective comment – include the following in your submission:
- Introduction explaining why you are interested in the regulation and your experience on the subject;
- Background clarifying the part of the regulation you are commenting on;
- Analysis of your argument or comments and discussion of supporting evidence;
- Recommendations describing your suggestions; and
- Conclusion recapping your main arguments and recommendations.
