The H-1B visa program is again at the center of proposed regulatory changes. On July 17, 2025, the Department of Homeland Security (DHS) sent a draft rule titled “Weighted Selection Process for Registrants and Petitioners Seeking To File Cap-Subject H-1B Petitions” to the Office of Management and Budget (OMB). OMB completed its review on August 8, 2025, clearing the way for USCIS to publish the rule for public comment in the Federal Register.
If enacted, this would mark a fundamental shift in how H-1B cap registrations are selected — moving away from a random lottery toward a system that prioritizes higher wage levels.
What the Proposed Rule Would Do
While the final text has not yet been released, the expectation is that USCIS will revive and reintroduce a rule first proposed in January 2021, which was later blocked in federal court and withdrawn.
Under that framework, H-1B cap registrations would be ranked based on the prevailing wage level offered for the position:
- Level IV (highest wage) would be considered first, followed by
- Level III, then
- Level II, and lastly
- Level I (entry-level positions).
If more registrations are submitted at one wage level than there are available visas, USCIS would then apply a lottery within that level.
The rule would apply to both the regular H-1B cap and the advanced degree exemption (U.S. master’s or higher degree holders).
Why This Matters
The change would represent a major departure from the current random lottery system. Key implications include:
- Reduced chances for entry-level workers. Many recent graduates in F-1 OPT or STEM OPT typically qualify at wage level I. Under the proposed system, these cases would likely have the lowest chance of selection.
- Advantage for higher-paid positions. Employers offering wage levels II–IV would see stronger odds of success, especially in competitive industries.
- Impact on startups and nonprofits. Organizations unable to pay higher salaries may find it much harder to secure H-1B visas for talented foreign nationals.
- Broader workforce effects. The change could alter the pipeline of skilled foreign workers, particularly in technology and research, where many entry-level hires come from U.S. universities.
Background and Context
- The 2021 wage-based rule was struck down by a federal judge and later rescinded by the Biden Administration.
- The second Trump Administration is expected to push forward aggressively with this policy, meaning timing may favor implementation before the next H-1B registration season.
- In March 2025, the H-1B selection rate was 35.7%, with more than 216,000 applicants unselected. A wage-based system would likely make those odds even steeper for lower-level filings.
Concerns and Criticism
Critics argue that salary does not equal talent. Many of the world’s most innovative minds began their careers earning entry-level wages. A wage-based system risks excluding highly qualified individuals — including recent U.S. graduates — who could otherwise make significant contributions to the economy and society.
What Employers and Applicants Should Do
- Monitor the Federal Register. Once the proposed rule is published, there will be a public comment period. Employers, schools, and industry groups should consider submitting feedback.
- Plan ahead for March 2026. If the rule is finalized in time, H-1B registration strategy may need to focus on offering higher prevailing wages or rethinking hiring plans.
- Explore alternatives. Options such as the O-1 visa, TN (for Canadians and Mexicans), or employment-based green card categories may become more important if H-1B access narrows.
Final Thoughts
If implemented, this rule could fundamentally reshape the H-1B program by prioritizing wages over randomness. While intended to reward “higher-skilled” positions, it may unintentionally shut out bright new graduates and startups.
At NPZ Law Group, we are closely tracking these developments. Our team advises employers and foreign nationals on navigating H-1B strategy, compliance, and alternative visa options.
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 551-400-6461 extension 104. We also invite you to visit our website at www.visaserve.com for more information.