The United States Citizenship and Immigration Services (“USCIS”) has announced a final rule which will amend the selection process for H-1B registrations. The rule — which will to take effect with the FY2027 H-1B registration period in March 2026 — will implement a weighted selection process effectively giving more entries to beneficiaries with positions at higher wage levels. The impact of this rule will mean that higher-wage earners will have a higher probability of selection in the lottery. However, it is not expected to entirely preclude from selection beneficiaries offered entry-level wages.
New Lottery Process
The new rule will go into effect only if USCIS receives more H-1B registrations than visas available under the annual quota (65,000 with an additional 20,000 available for U.S. advanced degree holders). In the event that registrations exceed the quota, each unique beneficiary would be registered into the lottery in accordance with the Occupational Employment and Wage Statistics (“OEWS”) wage level aligned with the prospective H-1B petition.
Specifically, the number of registrations for the lottery will be allotted based on whether the salary offered for the position meets or exceeds applicable prevailing wage levels:
- Wage Level IV positions will be entered four times in the lottery.
- Wage Level III positions will be entered three times in the lottery.
- Wage Level II positions will be entered two times in the lottery.
- Wage Level I position will be entered one time in the lottery.
The same provisions remain from previous lotteries ensuring that each unique beneficiary can only be selected once.
Additional Considerations
While there remain several unanswered questions given the recency of the rule, employers should consider the following in preparation for this year’s lottery:
- The wage levels utilized in the lottery process are based on geographically specific rates set by the U.S. Department of Labor and are categorized by occupation. Alternative wage surveys can not be utilized in lieu of the Department of Labor wages to gain additional selections.
- It is expected that USCIS will require that petitions selected in the lottery submit evidence that the position meets the wage level stated in the registration. These increased evidentiary requirements could increase the likelihood of the issuance of Requests for Evidence and could further delay processing times.
- One of the primary stated reasons for the rule was to ensure fairness for U.S. workers in the labor market. While it has always been a requirement associated with the Labor Condition Application connected to the H-1B, we would advise that employers take additional steps to sufficiently prepare documentation justifying proffered wages for H-1B workers in accordance with standard business practices.
- The rules are specifically drafted to ensure that entry-level workers earning Level I wages still have a chance for selection in the lottery, although the rate of selection may change.
