Key Takeaways
- U.S. Citizenship and Immigration Services (USCIS) issued a final rule confirming that a weighted lottery system will be in place for the FY 2027 H-1B registration season.
- The final rule apportions the number of lottery “chances” based on wage level, meaning that beneficiaries offered a higher wage level will have a higher chance of selection.
- Registration submission will require additional information confirming the wage level offered to the registration beneficiary.
Background on the H-1B Classification
The H-1B nonimmigrant visa program, which is the United States’ largest employment-based temporary immigration pathway, was created to authorize the temporary employment of foreign workers to perform high-skilled labor in specialized occupations in the United States. Congress has authorized the issuance of 85,000 H-1B visas per government fiscal year, of which 20,000 are reserved for individuals with a qualifying U.S. master’s or higher degree. Employers register their prospective foreign workers in an annual lottery each March through which H-1B registrations are chosen at random. Employers whose registrations are selected may then submit to USCIS full H-1B petitions which must establish, among other things, that (i) the job offered is a “specialty occupation” (in that a bachelor’s or higher degree in a directly related specific specialty is required for entry into the occupation), (ii) the foreign worker meets the educational requirements for the position, and (iii) the employer will pay the worker the higher of the prevailing wage or actual wage for the position. Universities and certain nonprofit organizations are exempt from the H-1B lottery requirements.
New Weighting of Registrations by Wage Level
The new final rule, which takes effect on February 27, 2026, will significantly change the H-1B registration selection process and odds for the FY 27 H-1B registration season. Since the inception of the H-1B program USCIS has used a lottery system during years in which the demand for H-1B visas exceeded the annual quota. Historically, the process was a random selection of filed H-1B petitions with enough petitions selected to meet the regular 65,000 lottery allotment and the 20,000 U.S. master’s degree allotment. In 2020, the first Trump administration implemented a registration process requiring submission of a registration form which was used to identify selected registrations that could be used to file an H-1B cap subject petition.
Starting in this H-1B registration season, the chances of selection will be tied to the wage level of the role offered to the beneficiary. The weighting will be based on the Department of Labor’s data which assigns four wage levels per job classification. Level 1 wages are the lowest-level wages (which typically align with entry-level roles), while Level 4 wages are the highest-level wages and typically align with more senior-level roles. The weighting will be directly based on the offered wage level with the following allocation of lottery pool entries:
- Level 1 = one entry to the selection pool
- Level 2 = two entries to the selection pool
- Level 3 = three entries to the selection pool
- Level 4 = four entries to the selection pool
Unlike prior proposals from USCIS, the final rule does not result in a system where it is nearly impossible for an individual offered a Level 1 wage to be selected; nevertheless, the weighting of the lottery results in a system where an individual offered a higher wage level will have a meaningfully higher likelihood of success.
New Requirements for H-1B Registrations and H-1B Cap Petitions
The final rule confirms that, starting this year, H-1B registrations will require employers to note the highest wage level that the registration beneficiary’s wage equals or exceeds for the area of intended employment along with the Standard Occupational Classification (SOC) code that aligns with the role offered. While private wage surveys can be used for the registration process, the weighting will be based on the Occupational Employment and Wage Statistics (OEWS) wage data. Registrants using private surveys resulting in a wage that is lower than the OEWS data will be instructed to select the Level 1 wage box. Registrants who use private surveys and have offered wages above Level 1 will select the appropriate box based on where the offered wage fits within the OEWS wage data levels. Additionally, the rule confirms that H-1B petitions filed based on selected registrations will be required to submit a copy of the prevailing wage data as evidence of the wage level in effect “on the registration as of the date that the registration underlying the petition was submitted.”
Litigation
We expect that legal challenges will be filed to stop the government’s ability to use this new weighting system in the FY 2027 registration process. It remains to be seen whether these expected legal challenges will result in court action that affects the implementation of this rule before the upcoming H-1B registration filing window opens in March 2026.
Conclusion
This new rule, combined with the $100,000 filing fee for individuals who are not physically present in the United States or not eligible to change their nonimmigrant status inside the United States, will likely result in fewer H-1B registrations filed for the FY 27 H-1B registration season as compared to prior years. We expect additional updates in the coming months and will issue future alerts as necessary.
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