Business Immigration Insights

On September 24, 2025, DHS issued a proposed regulation to change the annual H-1B visa lottery from a random lottery of registrants to a weighted system favoring those offered higher salaries by US employers. 

Background

Each fiscal year beginning on October 1st, 65,000 H-1B specialty occupation temporary work visas are available to those who do not already hold H-1B status, plus an additional 20,000 for those holding US advanced degrees.  More H-1B visas are sought each fiscal year than there are H-1B visas available, so USCIS randomly selects registrants for these visas from an online registration portal that opens every March for a limited period.  Because the lottery is random, registrants seeking H-1B visas are treated more or less uniformly.  There is a slight advantage for those holding US-awarded advanced degrees, as they get a second chance due to the 20,000 additional H-1B slots. A second lottery is conducted for those visas immediately after the lottery for the 65,000.

Those already approved for H-1B status are not subject to the annual lottery when seeking changes in their employers or extensions of their H-1B status.  In addition, H-1B workers at cap-exempt organizations are not subject to the annual cap.  Such organizations include colleges/universities and certain research organizations.  However, those holding cap-exempt H-1B visas who wish to change to a cap-subject employer must go through the annual lottery.

Proposed Changes

The proposed lottery system would require additional information about the salaries offered and the Department of Labor Occupational Employment and Wage Statistics (OES) wage level.  Under the OES wage data system, every occupation is divided into 4 wage levels, with Level 1 being the lowest average wage for that occupation in the area of employment and Level 4 being the highest average wage. Under the weighted system, those with higher wages would have a greater chance of being selected due to additional entries in the selection pool:

• Level IV: 4 entries
• Level III: 3 entries
• Level II: 2 entries
• Level I: 1 entry

Accordingly, this system statistically favors higher-paid and higher-skilled workers.

As with the current random lottery, the proposed system remains beneficiary-centric, meaning that each person seeking an H-1B visa can only have a single registration in the system, but may have a higher chance of being selected depending on the salary offered.  This limitation prevents an employer with US affiliates from submitting registrations for the same person to increase the chances of selection and then moving the employee through a change of employer petition to the company that desires to employ that person.

Under the proposed system, lottery registrations must include more information than under the current system:

• The highest OES wage level the proffered wage meets or exceeds
• The occupation (SOC) code for the position offered and area of intended employment (since wages vary by geographic location)
• If a position has multiple worksites, the wage level listed in the registration must reflect the lowest wage level

Information contained in the H-1B petition subsequently submitted to USCIS for those selected must match the information provided in the lottery registration.  USCIS can deny an H-1B petition if any of the information deviates from what was contained in the registration, the wage level is reduced after selection but before petition submission, or USCIS does not believe that the job offer is bona fide.

The proposed rule also anticipates how to handle technical issues with the new registration system.  If there is a suspension of the registration/lottery system (for technical or other issues), USCIS may direct employers to file the petitions to which the weighted selection process will be applied.

Interested parties are invited to submit comments to the proposed rule through November 24, 2025.  DHS expects the final rule to be in place for the FY2027 lottery process that will take place in March 2026 (for the H-1B visas that become available on October 1, 2026).