The H-1B program has long been criticized for relying on chance rather than merit. For years, employers and foreign national professionals alike have watched highly qualified candidates lose out in a purely random lottery, while less suitable roles were selected by luck alone. That framework is now poised to undergo a fundamental shift.
Under a newly finalized regulation, H-1B cap selection will move away from a random process and toward a wage-weighted allocation model tied to the Department of Labor’s Occupational Employment and Wage Statistics (OEWS) wage levels. In practical terms, the selection process will place greater emphasis on salary levels than on random chance.
How the New Selection Process Works
Under the revised rule, each H-1B registration will be entered into the selection pool based on the OEWS wage level associated with the offered salary for the position:
- Level 4 wages (the highest tier) will receive four entries
- Level 3 wages will receive three entries
- Level 2 wages will receive two entries
- Level 1 wages will receive one entry
In short, individuals who receive higher salaries have higher odds of selection.
When registering a beneficiary for the H-1B cap, employers will be required to identify the Standard Occupational Classification (SOC) occupational code, OEWS wage level, and area of intended employment. If the registration is selected, the subsequent petition must include documentation demonstrating that the wage level selected during registration was appropriate for the role and that is what will be paid to the selected candidate.
USCIS has made it clear that this will not be a “check-the-box” exercise. The agency retains the authority to deny or revoke an H-1B petition if it determines that an employer attempted to manipulate the system by selecting an artificially high wage level to increase lottery odds, or by offering a lower wage at the petition stage than what was declared during registration.
Limited Flexibility—But with Scrutiny
The regulation does recognize that legitimate business changes can occur between registration and petition filing. For example, a bona fide change in work location may result in a lower prevailing wage. USCIS may, in its discretion, permit such changes—but only if it is satisfied that the job offer was genuine and structured adequately at the time of registration.
Employers should expect heightened scrutiny and be prepared to document their decision-making thoroughly.
Multiple Locations and Multiple Employers
For positions with multiple work locations, employers must select the lowest applicable OEWS wage level for the role. Additionally, if more than one employer submits an H-1B registration for the same foreign national, the beneficiary will be entered into the lottery based on the lowest wage level among all registrations.
This provision alone is likely to significantly alter the H-1B strategy, particularly for candidates with multiple offers or consulting-style arrangements.
A Broader Policy Direction
This rule does not exist in isolation. It follows President Trump’s earlier proclamation proposing a $100,000 fee for certain H-1B petitions and coincides with the Department of Labor’s ongoing efforts to raise prevailing wage levels more broadly. Taken together, these developments signal a clear policy objective: prioritize higher-paid, senior roles and reduce access for entry-level positions.
What This Means for Employers
For employers, especially those that rely on early-career talent, the implications are significant. Level 1 wage roles will face the steepest disadvantage. Some employers may respond by increasing wages to improve selection odds, which in turn will further reduce opportunities for lower-wage candidates.
Employers and their immigration counsel must begin evaluating prospective H-1B candidates well in advance of the FY 2027 cap season, with careful attention to job design, wage strategy, and documentation. Missteps at the registration stage may now carry irreversible consequences.
The rule is intended to take effect for the FY 2027 H-1B cap season, although legal challenges remain possible. If implemented, USCIS is expected to issue detailed guidance on registration procedures under the new system.
One thing is clear: the H-1B program is no longer about luck. It is about preparation, strategy, and getting it right the first time.