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The U.S. Department of Homeland Security published a final rule that will shift the H-1B cap registration selection process from a random lottery to a weighted selection process based on a beneficiary's proposed salary and the prevailing wage level into which the offered salary falls.1 The final rule is scheduled to take effect ahead of the FY 2027 H-1B cap registration process which is set to begin in March 2026, however, it is possible that the regulation will be challenged in court. If the final rule does go into effect in time for this year's H-1B cap registration process, it will increase the chance of selection of those employees paid at higher wage levels. We also believe that staffing companies, which historically filed tens of thousands of H-1B lottery registrations, will dramatically reduce the number of registrations they submit as a direct result of the $100,000 filing fee for consular H-1Bs, leading to an increase in overall selection rate.
Under the final rule, beneficiaries will be entered into the registration selection pool in a weighted manner as follows:
- beneficiaries assigned wage level IV will be entered into the selection pool four times;
- beneficiaries assigned wage level III will be entered into the selection pool three times;
- beneficiaries assigned wage level II will be entered into the selection pool two times; and
- beneficiaries assigned wage level I will be entered into the selection pool once.
The final rule will require employers to indicate the relevant Standard Occupational Classification (SOC) code, area(s) of intended employment, and highest OEWS wage level that a beneficiary's proffered wage equals or exceeds for each H-1B registration they submit. An H-1B petition filed for a beneficiary selected under this weighted process will need to include evidence that the SOC code, area(s) of proposed employment, and OEWS wage level selected on the registration were appropriate for the proffered occupation, and U.S. Citizenship and Immigration Services (USCIS) can deny or revoke the petition if it determines that the appropriate selections were not made. However, while the wage level selected on the registration is based solely on a beneficiary's proffered salary, the wage level selected on the Labor Condition Application filed with the H-1B petition will continue to be determined by the proffered occupation's minimum education and experience requirements, along with other criteria established by the Department of Labor's prevailing wage guidance.
USCIS is expected to issue additional guidance for submitting H-1B cap registrations under the new weighted selection process. We will provide updates on the implementation of the final rule as they become available.
Footnote
1. Prevailing wage levels are determined by the Department of Labor pursuant to the Occupational Employment and Wage Statistics (OEWS) data (i.e., wage levels I – IV)).
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