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The proposed H-1B visa lottery rule change is designed to significantly favor applicants with higher offered wages. Under the new Department of Homeland Security (DHS) plan, foreign workers offered a salary at the highest wage level would have their name entered into the H-1B cap lottery four times, greatly increasing their chances of selection compared to those offered lower wages.
This shift from a random lottery to a wage-based weighted system aims to prioritize higher-skilled talent. For employers and foreign nationals, understanding the Occupational Employment and Wage Statistics (OEWS) wage levels is now critical to navigating the future of the H-1B process.
The revised selection method for the H-1B cap will be based directly on the OEWS wage levels. The OEWS is a survey conducted by the Bureau of Labor Statistics that provides data on wage rates for hundreds of occupations across different geographic areas. When registering a candidate for the H-1B lottery, employers will be required to specify the occupational code, the geographic location of employment, and the corresponding OEWS wage level that matches the salary they intend to pay (the proffered wage).
The proposed weighted system works as follows:
This structure fundamentally alters the odds of selection, moving away from pure chance toward a system that incentivizes employers to offer higher, more competitive wages to secure H-1B visas for their candidates.
Currently, the H-1B lottery is a random selection process administered by US Citizenship and Immigration Services (USCIS). Each electronically registered candidate has an equal chance of being selected, regardless of their salary, skills, or education level, once the annual quota of 65,000 regular cap visas (plus 20,000 for advanced degree holders from U.S. universities) is exceeded.
The proposed rule marks a significant departure from this neutrality. The previous administration's "H-1B selection final rule" also sought to prioritize wages but was structured differently, selecting registrations based on descending wage levels until the cap was met. The new weighted lottery approach is a distinct method to achieve a similar goal of favoring higher-paid workers. Based on our assessment of immigration trends, this change aligns with a broader policy focus on attracting and retaining specialized, high-wage talent in fields like software development, engineering, and healthcare.
For employers, preparation is key. The most immediate impact will be on salary strategy. To increase the likelihood of a successful H-1B petition, companies may need to reassess their compensation packages for foreign national candidates to ensure they align with higher OEWS wage levels for the specific role and location.
Accurate registration will be paramount. Employers must meticulously determine the correct occupational code and corresponding OEWS wage level for each candidate. Errors in this step could not only reduce the chance of selection but also lead to requests for evidence or denials from USCIS later in the process. It is also important to note that this proposed rule exists alongside other recent changes, such as the temporary requirement for a $100,000 payment for new H-1B petitions starting September 21, 2025, which significantly increases the cost of sponsorship.
The proposed rule is not yet final. The Department of Homeland Security has opened a public comment period, allowing stakeholders—including employers, immigration attorneys, and industry groups—to submit feedback until October 24, 2025. These comments can be filed online at regulations.gov under Docket No. USCIS-2025-0040.
Following the comment period, DHS will review the feedback and potentially make revisions before issuing a final rule. This final rule will include an official effective date. Employers and foreign nationals should monitor these developments closely, as the timeline for implementation remains uncertain.
In summary, the key takeaways for navigating the potential new H-1B system are:
