The U.S. Department of Homeland Security (DHS) is proposing a rule that would change the H-1B visa program from a random lottery to a selection system based on wage and talent.
The proposal has officially entered the Federal Register for public comment and consultation today. People now have 30 days to file comments. The proposal suggests that approvals should consider wage levels associated with the positions for which H-1B visas are sought.
If approved under its current design, the rule could affect new applicants, including international students studying in the United States who choose this visa to obtain employment and remain in the country.
As part of the current heightened scrutiny of this employment visa, in November, the Department of Labor announced that it is conducting at least 175 investigations targeting potential abuses within the program.
Why is the U.S. government proposing this change?
Immigration attorney Jihan Merlin from legal services firm Alma explains that the proposal addresses several concerns about the current lottery system.
“Right now, all eligible registrations for unique beneficiaries are treated equally, regardless of the wage offered or the skill level of the role,” she says. “DHS argues that this can result in many lower-wage or entry-level positions being selected even when higher-wage applications are also in the pool, which may undercut wages and reduce the incentive for employers to offer more competitive pay.”
According to DHS, the selection process for H-1B visas is not aligned with Congress’s original intent for the program, which aims to attract highly skilled talent in areas of significant need.
“At the same time, USCIS is concerned about gaming of the system, with some employers or agents submitting multiple registrations to increase odds. By weighting chances based on wage levels, DHS hopes to curb perceived abuse, better reward higher-paid roles, and shift the program’s economic impact toward higher overall wages and greater U.S. competitiveness.”
The proposed rule was first introduced in August and has been under review by the Office of Management and Budget (OMB) since then. After the public submits its comments, the DHS may revise and make adjustments before issuing a final rule.
“Employers and other stakeholders should review the proposal carefully and consider submitting comments during the designated period,” Murthy Law Firm told clients, and added that the proposed selection process entails a significant shift in how the United States Citizenship and Immigration Services (USCIS) manages the H1B visas.
The proposal follows President Donald Trump’s proclamation on Sept. 19 of a new $100,000 fee for U.S. employers sponsoring new H-1B visas. The USCIS published further guidance on Oct. 20 regarding how the fee will apply to new petitions and not to current valid H-1B visas.
What is the H-1B visa?
The H-1B program is a non-immigrant visa program that allows foreign skilled workers to obtain temporary residency in the U.S. Currently, this program has a cap of approximately 85,000 new H-1B visas issued each year. However, demand exceeds the supply, resulting in a selection process that relies on a random lottery. In fiscal year 2025–26, over 343,000 eligible H-1B registrations were submitted.
Leading companies utilizing the H-1B visa program include Amazon and Microsoft, which submitted over 5,000 certified H-1B visa applications in 2024 alone, according to media reports.
Individuals who are selected in the H-1B lottery may face additional delays in the application process, as many come from China and India, countries that have caps on U.S. visa applications, resulting in potential lengthy waiting periods.
What does the proposal change?
The current H-1B selection process chooses each beneficiary randomly to ensure equal opportunity. However, DHS says it has led to many lower-wage positions being filled.
To address this, a new proposal suggests selecting beneficiaries based on Occupational Employment and Wage Statistics (OEWS), prioritizing higher-skilled and higher-paid workers.
“The proposed process would favor the allocation of H-1B visas to higher-skilled and higher-paid aliens, while maintaining the opportunity for employers to secure H-1B workers at all wage levels,” the proposal text reads.
According to Merlin, the most significant change would make each registration generate one to four “entries” depending on the wage level offered.
“Lower-wage roles are not excluded altogether, but they would be at a relative disadvantage compared to higher-paid positions. This creates a fundamental rebalancing of the system: instead of equal odds for all, USCIS would be explicitly weighting selection toward higher wages,” she says.
The change aims to align the selection process to Congressional intent and to reduce the filling of lower-paid positions.
“Congressional intent behind creating the H-1B program was, in part, to help U.S. employers fill labor shortages in positions requiring highly skilled or highly educated workers.”
Merlin adds: “The proposal also requires more upfront disclosure from employers at the registration stage, including the proffered wage, the SOC code, the wage-level box, and the area of intended employment, since those details will determine how many lottery entries are assigned. While the annual cap numbers and the advanced degree exemption remain unchanged, the way candidates are chosen within those pools would be overhauled.”
DHS also anticipates that this new process could increase the total annual salaries for H-1B workers.
The attorney concludes: “Employers hiring entry-level professionals – particularly startups, universities, and nonprofits that rely on lower prevailing wage levels (or which rely on variable compensation like equity, which is not counted for H-1B salary purposes) – would likely see their odds of success fall. By contrast, large employers able to pay higher wages might gain a comparative advantage. Overall, this could exacerbate the gap between resource-rich employers and smaller companies competing for the same talent.”
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