H-1B Update: Trump Administration Proposes Weighted Lottery And Enhanced Worksite Enforcement

Key Takeaways:

• Weighted lottery favoring higher earners to go into effect for March 2026 H-1B Lottery
• Regular Cap and U.S. Master's Cap, as well as electronic Cap Registrations, to remain the same, but Cap Registrations to require more information, including wage level
• Level 4 wages earners to be four-times more likely to be selected than Level 1 earners
• DOL also launching Project Firewall to combat H-1B fraud and other abuses

In the wake of last week's Presidential Proclamation introducing a $100,000.00 fee for new H-1B Petitions, the Trump Administration has also announced additional measures that may bring additional uncertainty to current and future H-1B processes, alike. Indeed, less than a year after extoling the H-1B Program's virtues and affirming his use of the same on his properties, these measures signal a return to Trump 1.0's fixation on tightening U.S. employers' use of this visa by raising the costs of participation up front – whether through the aforementioned $100,000.00 fee or the to-be-discussed weighted Cap Lottery – and throughout the visa's duration by increasing investigations.

H-1B Cap Lottery – The Higher Your Wage Level, The More Likely USCIS Will Select Your Registration

First up is the Proposed Rule published on September 24, 2025 in the Federal Register that describes a new, weighted selection system that, according to the Rule, better aligns with Congress' intent when creating the H-1B Program in 1990. The Administration hopes to have the weighted system in-place for the Fiscal Year 2027 H-1B Cap Lottery that will take place in March 2026.

To start, the weighted selection process will demand that U.S. employers provide more information than the prospective H-1B worker's biographic data and whether they will qualify under the Regular or U.S. Master's Cap. Specifically, and on the grounds that employers should know these details if their H-1B Cap Registration is truly in support of a bona fide job offer, USCIS will demand H-1B Cap Registrations to include the following information:

1. A worker's standard occupational classification ("SOC") code – i.e., their profession.
2. A worker's area(s) of intended employment – i.e., the metropolitan statistical area ("MSA") in which they will work; and
3. The highest wage level, according to the U.S. Department of Labor's Occupational Employment and Wage Statistics ("OEWS") surveys – that the worker's proffered wage will meet or exceed in their MSA.
   1. For reference, the Proposed Rule refers to the wage levels as follows: level 1 for entry-level workers, level 2 for qualified workers, level 3 for experienced workers, and level 4 for fully competent workers.

From there, USCIS will still separate Regular Cap Registrations from their U.S. Master's Cap counterparts, select 20,000 from the latter, pool the unselected U.S. Master's Cap Registrations into the Regular Cap Pool, and select 65,000 from that group.

The key difference is that whereas USCIS previously conducted randomized selections of Cap Registrations submitted, the Service will now weight Cap Registrations with higher attendant wage levels. If finalized, wage 4 earners will be entered into their selection pool(s) 4 times, wage 3 earners 3 times, wage 2 earners 2 times, and wage 1 earners only once. Thus, level 4 earners are 4 times as likely to be selected than level 1 earners, with the probability of a level 3 and level 2 earner 3 times and 2 times higher than level 1 earners, respectively. Accordingly, a level 4 earner entered into the U.S. Master's Cap could have a total of 8 entries into the Cap Lottery – 4 in the U.S. Master's pool and, if they are not selected at that time, another 4 entries into the Regular Cap's version – and thusly have the best odds of being selected, whereas a level 1 earner in the Regular Cap will be the worst bet to get selected with only one entry for selection.

In the event the H-1B employee will work at multiple locations, USCIS will use the lowest wage level when weighting the Cap Registration. Likewise, should a foreign national with two Cap Registrations from separate employers, each offering a bona fide job, USCIS will consider the lowest wage level controlling. And should USCIS receive an H-1B Petition with a wage that does not correspond to the wage represented in the Cap Registration, said H-1B Petition is likely to be denied or, if already mistakenly approved, revoked.

According to the Proposed Rule, which the U.S. Department of Homeland Security ("DHS") claims will achieve the H-1B Program's mission to attract and employ only the most skilled professionals, the weighted selection process should nearly double the number of level 4 earners granted new H-1B visas each year and result in a net $500 million overall gain in H-1B earnings. Whether the Proposed Rule goes into effect as written and/or delivers the benefits promised therein remains to be seen. What is clear, though, is that the Proposed Rule is likely to significantly impact the way U.S. employers utilize the H-1B Program. Even more, it stands to reason that the Proposed rule is likely to make it even more difficult for recent foreign national graduates of U.S. colleges – many of whom, like other all college graduates, may garner an entry-level wage corresponding to level 1 in their first job – to remain in the United States as H-1B Visa holders.

Project Firewall

Released on the same day as, and overshadowed by, the $100,000.00 Presidential Proclamation, the Department of Labor ("DOL") announced on September 19, 2025 the launch of Project Firewall. According to the announcement, Project Firewall is solely dedicated to protecting "the rights, wages, and job opportunities of highly skilled American workers by ensuring employers prioritize qualified Americans when hiring workers and holding employers accountable if they abuse the H-1B visa process."

To these ends, and with the help of agencies within the U.S. Department of Justice and DHS, the DOL is increasing investigations at H-1B worksites to verify compliance with the H-1B Program's mandates and appropriately punish violators through paying back wages to underpaid H-1B workers, imposing civil penalties, and/or suspending offending employers from using the H-1B Program. The DOL also affirms it will collaborate with other interested agencies through information sharing and coordinated efforts to root-out discrimination against U.S. workers. More than anything, H-1B employers should expect, now more than ever, a visit from the government to ensure their H-1B compliance.

Without question, the above-discussed proposals represent a significant change for H-1B stakeholders as the Trump Administration broadens its anti-immigration agenda to include both undocumented immigrants and the legal pathways for foreign nationals to live and work in the United States. It is therefore equally unsurprising that these recent announcements have unsettled H-1B employers and workers alike. If you have any questions regarding how these efforts may impact your H-1B status and H-1B workers, or if you are interested in preparing for potential investigations in this environment of enhanced enforcement, please contact our office so we can schedule a time to speak

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