DHS Proposes Weighted Entry System for H-1B Cap Lottery That Favors Higher Paid Workers

On September 24, 2025, U.S. Department of Homeland Security (DHS) published a Notice of Proposed Rulemaking (NPRM) that aims to change the H-1B cap lottery selection process to a weighted entry system that would increase the chances of selection for higher paid workers (that is, higher paid in relation to others in similar occupations in the geographic area of employment). This is a drastic deviation from the current lottery selection process, which selects registrations randomly without regard to any statistic other than an advantage for those who possess a graduate degree from a U.S. college or university.

For now, this is just a proposed change to the regulations and has not yet been implemented; per required legal process, DHS will collect public comments on the NPRM for a period of 30 days, and will then decide whether to make any adjustments or move forward with implementing the new system as-is. Presumably, DHS will decide to move forward with this new rule in some way, shape, or form, and it will likely go into effect before the next cap lottery cycle in March 2026.  Note that any new implemented changes will likely be subject to litigation, which may impact the enforceability of these changes. Although the exact program metrics could change and we do not yet know the long-term enforceability of this new system pending outcomes of any future litigation, this alert will summarize the key proposed changes from the NPRM to give employers a sense of what to expect.

The weighted lottery system proposed in the NPRM will achieve its desired goal by entering beneficiaries with higher salaries (relative to others in similar occupations in the geographic area of employment) into the lottery more times than those with lower salaries, using wage data published by the U.S. Department of Labor's (DOL) Occupational Employment and Wage Statistics (OEWS) program. OEWS wages are organized by occupational category (referred to as a “Standard Occupational Classification” (SOC)), by geographic area of employment, and then by wage level. The wage levels range from I to IV, corresponding loosely to skill level (with level I corresponding to “entry” level roles and level IV corresponding to “fully competent” employees). For illustration purposes, below is the OEWS wage matrix for a Software Developer in the Hartford, CT area:

 

Wage Level	Hourly	Yearly
I	$41.34	$85,987.00
II	$51.19	$106,475.00
III	$61.03	$126,942.00
IV	$70.88	$147,430.00

Per the NPRM, each cap lottery registration would need to indicate a SOC category and a wage level as part of the registration process, with the applicable wage level being assigned based on the wage level that the beneficiary’s offered salary equals or exceeds.  To give the workers at higher wage levels the advantage, the proposed electronic lottery system will enter the beneficiary’s name into the pool multiple times corresponding to the applicable wage level (i.e., someone assigned a level IV wage would be entered into the lottery four times; someone assigned a level III wage would be entered into the lottery three times; and so on).  If the beneficiary will work in multiple geographic locations, the registrant would ultimately be assigned the lowest wage level among the various locations.  For occupations for which there is no OEWS wage data available, the registrant would need to self-select the appropriate wage level based on the DOL’s Prevailing Wage Determination Policy Guidance from 2009.  Moreover, for registrants that are registered more than once by different employers, USCIS will utilize the lowest wage level among all registrations for that beneficiary.  So, sticking with the example above for a Software Developer in Hartford, CT, if the registrant was offered a salary of $110,000, they would be assigned a wage level II for cap registration purposes and be entered into the lottery twice.

For those registrations selected in the lottery, employers will then be required to submit evidence of the basis of the wage level selected on the registration as part of the H-1B petition that is ultimately submitted to U.S. Citizenship and Immigration Services (USCIS) for adjudication.

According to the NPRM, DHS estimates that the probability of being selected to file a H-1B cap-subject petition under this new weighted entry system would be 15.29% for level I, 30.58% for level II, 45.87% for level III, and 61.16% for level IV.  In contrast, the NPRM states that under the current randomized selection process, the estimated probability of being selected to file an H-1B cap-subject petition is 29.59%.

Therefore, employers should be aware of the relatively low chance of selection for level 1 wage workers, if this new weighed entry system is ultimately implemented and put into practice for next year’s lottery.  Again, any implementation of such a system will likely be subject to litigation, which we will monitor.

Further updates on H-1B cap lottery changes will be provided and posted on Shipman’s Immigration Resource Center as they arise.