Our Immigration Team reviews the Department of Homeland Security’s new weighted H-1B visa lottery system designed to encourage employers to recruit higher-skilled workers.
- The lottery is still random, but weighted in favor of jobs with higher Occupational Employment and Wage Statistics wage levels
- The new process applies to both the regular H-1B cap and the advanced degree exemption
- The technology and finance industries will likely benefit, while small employers will likely face challenges
On December 29, 2025, the Department of Homeland Security (DHS) finalized a significant change to the H-1B cap lottery system. Effective February 27, 2026, the traditional random selection process will be replaced by a weighted lottery. The stated purpose of this new H-1B registration selection process is to incentivize employers to offer higher wages or to submit petitions for positions requiring higher skills aligned with those wages.
Rather than treating all cap-subject registrations equally, the new H-1B registration selection process is designed to increase the chances of selection for positions with higher Occupational Employment and Wage Statistics (OEWS) wage levels (I–IV). The actual selection process is still random but is now weighted to improve the odds of selection for higher-skilled workers, and therefore typically higher-paid workers.
To facilitate this goal, each H-1B cap registration must include the relevant Standard Occupational Classification (SOC) code, industry of intended employment, locations, and the applicable OEWS wage level. The lottery will assign the number of entries based on the OEWS wage level. Based on complex DHS projections, DHS indicates the probability of being selected under the new weighted selection:
- Level I: 1 entry (~15.29% chance)
- Level II: 2 entries (~30.58% chance)
- Level III: 3 entries (~45.87% chance)
- Level IV: 4 entries (~61.16% chance)
It is important to note that weighting is determined solely by the OEWS level, not the actual salary offered. For instance, a Level IV wage for a landscape architect position in a rural area may be lower than a Level II wage for a software engineer in a major city, due to differences in occupation and location.
All four wage levels of the OEWS system can potentially qualify for H-1B visas if the offered position is a “specialty occupation” requiring at least a bachelor’s degree. The greater the OEWS level, the greater the minimum wage required for that position at that location. Regardless, a submission at any OEWS level has an opportunity to be selected.
- Level I (Entry-Level): Basic knowledge, close supervision (lowest wages)
- Level II (Qualified): Moderate experience, some judgment (mid-low wages)
- Level III (Experienced): Substantial experience, independent work (mid-high wages)
- Level IV (Expert): Advanced expertise, often supervisory (highest wages)
This new weighted process will apply to both the H‑1B regular cap of 65,000 visas and the U.S. advanced degree exemption (master’s cap) of 20,000 visas. Certain higher education institutions, nonprofit research organizations, and government research organizations are exempt from the H-1B cap and are not required to participate in the weighted H-1B lottery system but remain subject to terms of the current $100,000 proclamation fee.
Potential Impact
- Industries likely to benefit: technology, finance, life sciences, law, executive roles.
- Industries likely to face challenges: Health care (especially in rural areas), small employers, and regions with lower wages.
Businesses may also face wage inflation, equity concerns, increased administrative complexity, and greater reliance on contractors. This change may also discourage prospective students from pursuing U.S. undergraduate programs but could lead to increased enrollment in graduate programs.
Action Items for Employers
- Review all H-1B positions and candidates to ensure the SOC codes, OEWS wage levels, and work locations are accurate and up to date. Address any wage equity issues identified during this process.
- Remember that the $100,000 Executive Order proclamation fee remains in effect. Potential H-1B candidates already in the United States (i.e., F-1, J-1) eligible to change status without traveling are exempt from this fee.
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