The U.S. Department of Homeland Security (DHS) has issued a Final Rule fundamentally changing how U.S. Citizenship and Immigration Services (USCIS) selects H-1B cap-subject registrations in years where demand exceeds the annual statutory cap. The rule replaces the long-standing purely random lottery with a wage-weighted selection process designed to favor higher-paid and higher-skilled positions, while still allowing participation across all wage levels.
The Final Rule will apply beginning with the FY 2027 H-1B registration season.
Key Takeaways
End of pure lottery: USCIS will continue to run a selection process, but registrations will now be weighted based on the OEWS wage level associated with the proffered position.
- Higher wages = higher odds: Registrations tied to higher wage levels will receive more “entries” in the selection pool.
- More scrutiny at registration and filing: Employers must now identify and later substantiate wage level, SOC code and work location information.
- Process integrity enforcement: USCIS will have enhanced authority to deny or revoke petitions where wage or job details appear manipulated.
How the Weighted Selection Works
When USCIS must conduct a selection due to excess registrations, each unique beneficiary will be entered into the selection pool multiple times based on the highest Occupational Employment and Wage Statistics (OEWS) wage level the offered wage equals or exceeds for the relevant SOC code and area of intended employment:
- OEWS Level IV: 4 entries (61% chance)
- OEWS Level III: 3 entries (45% chance)
- OEWS Level II: 2 entries (31% chance)
- OEWS Level I: 1 entry (15% chance)
Each beneficiary is still counted only once toward the annual cap, but higher-wage registrations have a statistically greater chance of selection.
Importantly, this approach differs from the vacated 2021 wage-ranking rule. DHS emphasized that the new system preserves access for entry-level and mid-level positions, rather than effectively excluding them from selection altogether.
New Registration and Petition Requirements
- At the Registration Stage
Employers must now provide additional information during electronic registration, including:
The highest applicable OEWS wage level
The SOC code for the proffered position
The area(s) of intended employment used to determine the wage level
- At the Petition Stage
If selected, the H-1B petition must:
Match the wage level, SOC code and location listed in the registration.
Include evidence supporting the claimed wage level as of the date the registration was submitted.
USCIS may deny or revoke petitions if it determines changes were made to unfairly increase selection odds, including post-selection job or wage restructuring.
Impact on Employers and Workers
DHS projects that the weighted selection system will:
- Shift a significant portion of H-1B approvals toward Level III and Level IV wage positions.
- Reduce approvals for Level I (entry-level) wage positions.
- Incentivize employers to offer higher wages or restructure roles to reflect higher skill requirements.
While DHS acknowledges potential cost increases for some employers, it concluded the rule better aligns with congressional intent to prioritize highly skilled and highly compensated workers, while protecting U.S. workers from wage suppression.
Effective Date and Transition
- The rule becomes effective 60 days after publication in the Federal Register.
- It will apply to all registrations submitted on or after the effective date, including those filed under the advanced degree exemption.
- Registrations and petitions filed before the effective date will be adjudicated under the prior rules.
What Employers Should Do Now
Employers planning to participate in future H-1B cap seasons should begin preparing immediately by:
- Reviewing wage structures and job classifications.
- Confirming SOC code accuracy and wage level alignment.
- Evaluating whether critical roles can reasonably support Level III or IV wages.
- Coordinating early with immigration counsel on registration strategy and documentation.
How Harris Beach Murtha Can Help
The Harris Beach Murtha Immigration Practice Group is closely monitoring implementation guidance from USCIS and advising employers on compliance, risk mitigation and strategic planning under the new weighted selection framework. We assist clients across industries — including health care, higher education, engineering, technology and manufacturing — in navigating evolving H-1B requirements.
For guidance on how these changes may affect your organization, contact the Harris Beach Murtha attorney with whom you most frequently work, or Immigration Practice Group Leader, L.J. D’Arrigo at (518) 701-2770 and ldarrigo@harrisbeachmurtha.com.
This alert is not a substitute for advice of counsel on specific legal issues.
Harris Beach Murtha’s lawyers and consultants practice from offices throughout Connecticut in Bantam, Hartford, New Haven and Stamford; New York state in Albany, Binghamton, Buffalo, Ithaca, New York City, Niagara Falls, Rochester, Saratoga Springs, Syracuse, Long Island and White Plains, as well as in Boston, Massachusetts, and Newark, New Jersey.
For more immigration law insights, visit Harris Beach Murtha Immigration Practice and subscribe to our Immigration Blog.
