The U.S. Department of Homeland Security (DHS) is preparing to roll out a significant change to how H-1B cap-subject petitions are selected. A proposed rule is currently under review and could reshape the lottery process for employers and foreign professionals seeking H-1B status.
At NPZ Law Group, we’re closely monitoring the development and offer a summary of what to expect.
What’s Changing?
DHS has submitted a proposed rule titled “Weighted Selection Process for Registrants and Petitioners Seeking to File Cap-Subject H-1B Petitions” for review. The rule is now under review by the Office of Management and Budget (OMB). Once OMB completes its review, the next step will be publication in the Federal Register for public comment.
Though the final version of the proposed rule has not been released, there is growing speculation that it may aim to replace the random lottery with a system that favors petitions offering higher wages or salaries. This approach would align selection with prevailing wage levels, potentially giving an edge to employers offering compensation in the higher tiers of the DOL wage structure.
Background: A Recurring Policy Debate
This isn’t the first time the H-1B selection process has been targeted for reform:
- During President Trump’s administration, a similar weighted proposal was introduced but later blocked in federal court.
- The Biden Administration eventually withdrew that rule, maintaining the current randomized selection system.
- The current administration appears to be revisiting the same concept, but it remains to be seen how the new proposal will be structured to withstand legal scrutiny.
What Employers Should Know Now
Until the new rule is finalized and published, the random lottery system remains in place. However, employers should begin planning ahead in case the rule moves forward.
Key considerations:
- Employers may need to offer competitive wage levels to remain viable under a weighted selection system.
- Petition strategies might shift toward emphasizing senior-level, specialized, or high-paying roles.
- Litigation is expected, which could delay or alter the implementation timeline.
NPZ Will Continue Monitoring
Any change to the H-1B selection system could have serious implications for employers planning to sponsor foreign professionals. NPZ Law Group will monitor the publication of the proposed rule and provide updates once details are available.
Contact us if you’re considering H-1B sponsorship in the upcoming fiscal year or want to explore how wage-based selection could affect your talent strategy.
Contact Information
If you or your family members have any questions about how immigration and nationality laws in the United States may affect you, or if you want to access additional information about immigration and nationality laws in the United States or Canada, please do not hesitate to contact the immigration and nationality lawyers at NPZ Law Group. You can reach us by emailing info@visaserve.com or by calling us at 201-670-0006 extension 104. We also invite you to visit our website at www.visaserve.com for more information.