H-1B Lottery - Weighted Selection Process

 

The Department of Homeland Security (DHS) published a final rule in the Federal Register on December 29, 2025, which fundamentally changes the H-1B selection process. This rule replaces the traditional random lottery with a "weighted selection process" that prioritizes higher-paid and higher-skilled workers.

The new system is scheduled to take effect on February 27, 2026, meaning it will apply to the FY 2027 cap season (registration typically occurring in March 2026).

The Change: From Random to Weighted

Instead of every registration having an equal chance, the odds of being selected will now depend on the Department of Labor (DOL) Wage Level associated with the job offer.
The lottery pool will assign "entries" to each beneficiary based on their offered salary relative to the Occupational Employment and Wage Statistics (OEWS) data:

• Wage Level IV (Highest): 4 entries in the pool.
• Wage Level III: 3 entries in the pool.
• Wage Level II: 2 entries in the pool.
• Wage Level I (Entry): 1 entry in the pool.

A Level IV applicant is statistically four times more likely to be selected than a Level I applicant.  For beneficiaries with multiple intended work locations, the employer must determine the wage level (I through IV) for the offered salary at each location. The lottery weighting will then be based on the lowest of those levels. It is important to note that this wage can be different from the LCA wage.

Impact on Master Cap

One critical change is that the 20,000 additional slots for U.S. advanced degree holders will now also follow the weighting system. Historically, advanced degree holders were entered twice: once in the regular cap and once in the master's cap. Now, their "weight" is applied to both pools.  For example, if a Master's degree holder is offered a Level III wage, they are entered into the Regular Cap (65,000) with 3 entries; if not selected, they are enterted into the Master's Cap (20,000) with 3 entries. 

Safeguards Against "Gaming"

To prevent employers from artificially inflating wage levels just to win the lottery, the rule includes several strict provisions:

• Continuation of "Beneficiary-Centric" Selection:  Each person is entered into the selection process only once, regardless of how many employers submit a registration for them. 
• Registration Data Requirements: Employers must now provide the specific SOC code (job category), the OEWS wage level, and the precise area of employment at the registration stage.
• Post-Selection Verification: If selected, the employer must submit evidence that the wage level indicated during registration is bona fide. USCIS has the discretion to deny or revoke petitions if they find inconsistencies or attempts to manipulate the odds.

Early Preparation is the Key

The new weighted selection process means employers must be more vigilant in preparing for the H-1B lottery. It is critical to evaluate cases with immigration counsel early, focusing on the following:

• Formally determine the SOC code and wage level before March registration based on the exact work location(s), as these will be locked into the USCIS system and must match the subsequent petition exactly to avoid denial.
• Maintain contemporaneous proof of prevailing wage data and job descriptions used to justify the selected level.
• Ensure the beneficiary maintains valid status to remain eligible for Change of Status (COS). If the petition must be filed for Consular Notification due to a status gap, the $100,000 supplemental fee will be triggered.
• Be ready to explain any subsequent changes in salary, work location, job titles, etc., to avoid allegations of fraud.
• Audit the current pay scale of employees in the same occupation category to avoid potential pay equity issues.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)