On September 23, 2025, the US Department of Homeland Security (DHS) introduced a proposed rule that would overhaul the H-1B visa lottery system, shifting from a randomized selection process to a wage-based weighted system. The change aims to prioritize higher-skilled and higher-paid foreign workers, following a White House proclamation on September 19, 2025, introducing a USD 100,000 fee for the visas.
Key Changes to the H-1B Selection Process
Under the proposed rule, US Citizenship and Immigration Services (USCIS) would:
- Implement a weighted lottery system based on the wage level offered to the H-1B beneficiary.
- Assign more entries in the selection pool to higher wage levels:
- Level IV: 4 entries
- Level III: 3 entries
- Level II: 2 entries
- Level I: 1 entry
- Maintain the beneficiary-centric model, ensuring each foreign worker is only counted once, regardless of how many employers submit registrations.
This system would apply to both the regular cap (65,000 visas) and the advanced degree exemption (20,000 visas).
Historical Context and Legal Background
A similar regulation was finalized during the final months of Trump’s first term in 2021, aiming to prioritize H-1B applicants based on wage levels. However, it was delayed by President Biden before its scheduled implementation in March 2021. The rule was later blocked by a federal judge in September 2021 and formally withdrawn by the Biden administration in December of that year.
The current proposal revives and revises that earlier effort, this time using a weighted selection model rather than a strict ranking system, which had previously raised concerns about excluding entry-level professionals.
Rationale Behind the Proposal
The administration argues that the current lottery system disproportionately favors lower-wage, entry-level positions, undermining the original intent of the H-1B program to attract top global talent. DHS data shows that wage levels III and IV are consistently underrepresented in H-1B filings.
The proposed rule is designed to:
- Incentivize employers to offer higher wages and recruit more skilled workers.
- Reduce abuse of the H-1B system by discouraging bulk low-wage filings.
- Improve program integrity by requiring consistency between registration and petition data.
Impact on Employers and Workers
- Employers offering higher wages will have a significantly better chance of selection.
- Entry-level workers (Level I) may see a 48% drop in selection probability.
- DHS estimates the rule would result in 502 million USD in economic benefits and 858 million USD in wage transfers from lower-wage to higher-wage H-1B workers in the first year alone.
Concerns and Legal Considerations
While the proposal aims to align with Congressional intent, critics argue:
- It may disadvantage recent graduates and early-career professionals.
- It could conflict with the Immigration and Nationality Act (INA), which mandates visa issuance in the order petitions are received.
- The use of wage levels as a proxy for skill has been legally challenged in the past.
Next Steps
The proposed rule is open for public comment for 30 days. DHS encourages stakeholders to submit feedback via Regulations.gov.
Erickson Insights & Analysis
Erickson Immigration Group will continue monitoring developments and sharing updates as more news is available. Please contact your employer or EIG attorney if you have questions about anything we’re reporting above or if you have case-specific questions.