The Department of Homeland Security recently published a Notice of Proposed Rulemaking (NPRM) in the Federal Register to amend certain regulations governing the U.S. Citizenship and Immigration Services process for H-1B registration selection during the annual cap lottery.

According to the NPRM, DHS “proposes to implement a weighted selection process that would generally favor the allocation of H-1B visas to higher skilled and higher paid aliens, while maintaining the opportunity for employers to secure H-1B workers at all wage levels, to better serve the Congressional intent for the H-1B program.”

If the proposal is finalized, USCIS would give greater weight to cap lottery registrations based on the equivalent Occupational Employment and Wage Statistics (OEWS) wage level the offered wage meets or exceeds. Registrations with an offered wage at or above the applicable Wage Level IV for the specific Standard Occupational Classification (SOC) Code and geographic location would receive four entries in the cap lottery, Wage Level III would receive three entries, Wage Level II would receive two entries, and Wage Level I would receive one entry. As a result, registrations for roles with a higher equivalent OEWS wage level would have a higher likelihood of being selected in the annual cap lottery.

The table below provides a summary of the four primary changes DHS has proposed:

Proposed rule provision Proposed change
1. Required information on the registration “A registrant would be required to select the box for the highest OEWS wage level that the beneficiary’s wage generally equals or exceeds and also would be required to provide the SOC code for the proffered position and the area of intended employment that served as the basis for the OEWS wage level indicated on the registration.”
2. Weighting and selecting registrations (or petitions if registration is suspended) “DHS proposes to implement a wage-based selection process that would operate in conjunction with the existing beneficiary-centric selection process for registrations. When there is random selection, USCIS would enter each unique beneficiary (or petition, as applicable) into the selection pool in a weighted manner: a beneficiary (or petition) assigned wage level IV would be entered into the selection pool four times; level III, three times; level II, two times; and level I, one time.”
3. Required information on the petition “The information required for the registration process would also be collected on the petition. Petitioners would be required to submit evidence of the basis of the wage level selected on the registration as of the date that the registration underlying the petition was submitted.”
4. Process integrity “The proposed rule would require an H-1B petition filed after registration selection to contain and be supported by the same identifying information and position information, including OEWS wage level, SOC code and area of intended employment provided in the selected registration and indicated on the LCA [Labor Condition Application] used to support the petition. The proposed rule would also allow USCIS to deny a subsequent new or amended petition or revoke an approved petition if USCIS were to determine that the filing of the new or amended petition was part of the petitioner’s attempt to unfairly increase odds of selection during the registration selection process.”

Publication of the NPRM is the first step in the formal rulemaking process. Changes will not take effect until DHS issues a final regulation with a specified effective date. The agency is required to consider comments from the public in formulating the final rule.

Written comments on the NPRM from the public can be submitted here on or before Oct. 24, 2025.

Additional Information:

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BAL will continue to monitor developments for this NPRM and provide essential updates.

This alert has been provided by the BAL U.S. Practice Group.

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