Salary-Weighted H-1B Lottery: How the Proposed Rule Works

The Department of Homeland Security proposed in September 2025 a sweeping overhaul of the H-1B lottery: instead of random selection, the system would weight each registration by the wage level of the offered position. This measure combines with the $100,000 per-petition fee introduced the same week and, together, they rewrite the balance between large corporations, small businesses, universities, and professionals who depend on the program.

To understand what is at stake, it is necessary to break down the proposed mechanics, compare them with the current design, and situate the rule within a regulatory context that continues to evolve throughout 2026.

What Changes in the Selection Process

Today, each valid H-1B registration has an equal chance of being selected, regardless of the salary offered. The proposal replaces this model with a system in which the number of entries in the pool varies according to the wage level of the position, as defined by the Occupational Employment and Wage Statistics (OEWS) of the Bureau of Labor Statistics.

The Four OEWS Levels

• Level I: entry-level positions, professionals with basic training and direct supervision
• Level II: qualified professionals with some degree of autonomy
• Level III: experienced professionals with high autonomy and responsibility
• Level IV: fully competent professionals, generally senior-level

How Many Entries Each Level Receives

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

The rule preserves participation for all levels, but weights the outcome in favor of higher salaries. In practical terms, a Level IV professional would have four times greater chance of being selected than a Level I in the same cycle, before any adjustment for registration volume.

Treatment of Multiple Registrations

If the same beneficiary is registered by more than one employer, the weighting applied will be that of the lowest wage level among the registrations. The stated intent is to eliminate the strategy of artificially inflating the salary on one registration solely to increase the candidate’s chances in the pool.

New Requirements at the Registration Stage

To enable weighted selection, employers would be required to provide at registration:

• The applicable OEWS wage level
• The Standard Occupational Classification (SOC) code
• The intended area of employment

The final petition must be consistent with the registration. The salary offered in the petition cannot be lower than the prevailing wage for the position in the indicated locality. USCIS would gain additional tools to deny petitions or revoke approvals in cases where manipulation is identified — such as promising a high salary at registration and then attempting to reduce it after selection.

Why DHS Is Proposing the Change

The official justification, set forth in the document published by DHS, is that the random lottery fails to fulfill the program’s stated objective of attracting highly qualified talent. Over recent years, the majority of H-1B petitions have been concentrated at Levels I and II, which the agency contends distorts the profile intended by Congress.

DHS asserts four objectives:

1. Incentivize employers to offer higher salaries or to petition for positions with elevated requirements
2. Prioritize more senior talent, on the premise that salary is a reasonable indicator of skill
3. Maintain some chance of selection for all wage levels, unlike a prior rule that would have effectively eliminated Levels I and II
4. Strengthen program integrity against duplicate registrations and salary manipulation

Who Wins and Who Loses

Large Employers and Senior Positions

Companies that already hire professionals with above-market salaries in areas such as artificial intelligence, semiconductors, biotechnology, quantitative finance, and offensive security gain a competitive advantage. Level III and IV positions will carry a significantly higher probability of selection, reducing the randomness that has historically disrupted workforce planning.

Small Businesses and Entry-Level Positions

The other side is severe. The proposal’s own analysis estimates a roughly 48% reduction in selection probability for Level I and II positions, currently the overwhelming majority of H-1B petitions. Small businesses, startups, consulting firms, and employers who hire early-career professionals see their path narrow considerably.

International Students and Recent Graduates

The most exposed group is professionals who complete their master’s or doctoral degrees in the United States and attempt the transition through OPT followed by H-1B. Since starting salaries typically align with Level I or II, the chance of selection falls precisely for the population that the program was theoretically designed to retain in the country.

Universities and Nonprofit Organizations

Although many of these entities are cap-exempt and therefore outside the lottery, the indirect effect is considerable. Graduate programs that market U.S. employability as part of their value proposition lose some of that appeal when the $100,000 fee and salary-weighted selection are combined.

Regulatory Status and What Lies Ahead

The proposal was opened for public comment on September 24, 2025, with a 30-day window for submissions. After that period, DHS will review the comments and may adjust the design before publishing a Final Rule. In 2026, professionals and employers should monitor three fronts:

• Publication of the Final Rule, which may confirm or modify the original proposal
• Potential litigation challenging DHS’s authority to weight the selection and the criteria chosen
• Coordination with the $100,000 fee and with the prevailing wage level review being conducted by the Department of Labor

The direction of all three measures is convergent: making access to H-1B more expensive and more selective. For professionals evaluating this route, the practical recommendation is to assess eligibility in parallel categories such as L-1, O-1, E-2, TN, and EB-2 NIW from the outset of planning, rather than treating H-1B as the only possible entry point into the U.S. labor market.

Victoria Harper

Editor-in-Chief

Meet the author

Leading journalism and editorial content at Visto n’ Visa, Victoria helps make immigration topics clear, trustworthy, and easy to understand. Her focus is on delivering useful, human, and relevant content for people exploring new paths abroad.