On Tuesday, September 23, 2025, the Department of Homeland Security (DHS) published a notice of proposed rulemaking (NPRM) introducing a weighted H-1B Cap selection process favoring unique beneficiaries. This weighted selection process will replace the current random lottery system. Under the weighted H-1B cap selection process, beneficiaries would be entered into the H-1B selection pool in a weighted manner based on the wage offered by their prospective employer. For example, a beneficiary offered a Level 4 wage (the highest wage level) would get four entries into the selection pool; a Level 3 wage beneficiary would get three entries; a Level 2 wage beneficiary would get two entries; and a Level 1 wage beneficiary would only get one entry. This weighted selection process would only take effect if there are more registrants than the overall availability of 85,000 H-1B visas per fiscal year.

This would require employers to indicate the appropriate occupational code, OEWS wage level, and area of employment in each candidate’s registration for the H-1B Cap. If selected, the employer’s H-1B petition must include documentation demonstrating that the wage level indicated in the registration was appropriate for the occupation. U.S. Citizenship and Immigration Service (USCIS) could deny a petition, or even revoke an approval, if it is determined that the employer attempted to unfairly increase the odds of a beneficiary’s selection by selecting an incorrect wage level or by changing the wage offered to a lower wage level in the petition than that indicated in the H-1B registration. The proposal does recognize that there are legitimate reasons that an intended work location might change between the time of registration and the time of filing the petition. Therefore, USCIS may, in its discretion, find that a change in the intended work location, resulting in a lower wage level, would be permissible, provided that the change is consistent with the original bona fide job offer.

This proposed weighted H-1B selection system would not take effect until the regulation cleared the federal rulemaking process and was finalized. This would typically take several months, and it is possible there will be court challenges to a final rule. The NPRM will be published in the Federal Register on Wednesday, September 24, 2025, and public comments must be submitted within 30 days of its publication.

Overall, this would drastically change the way employers and H-1B candidates view the H-1B selection process. Rather than relying on the odds of a random selection lottery where all applicants receive one entry, this new system will favor the allocation of H-1B visas to higher-skilled and higher-paid applicants. The new system, coupled with the newly required $100,000 fee for all H-1B petitions filed after September 21, 2025, will likely change how employers view H-1B sponsorship.

Our team will monitor for any updated guidance regarding the recent changes for H-1B employees and employers. Please reach out to a member of our team with any questions concerning these topics.