News Alert

January 7, 2026

FINAL RULE PUBLISHED TO CHANGE H-1B CAP LOTTERY

 

SUMMARY: Starting February 27, 2026, the H-1B lottery will shift from a random selection process to a weighted system based on wage levels. Under the new rule, higher wage levels will receive more entries in the selection pool, prioritizing Level IV positions over Level I. Employers will need to provide detailed wage level, SOC code, and job information during registration, and petitions must match the original registration details. This change, combined with new fees and increased audits, will significantly impact hiring for entry-level roles and requires employers to carefully evaluate candidates before registration.
 

The Department of Homeland Security (DHS) published a final rule at the end of December creating a major change in the H-1B cap lottery from a decades-old purely random selection to a wage level based weighted selection that prioritizes the allocation of H-1Bs to higher-paid workers.  

 

With the number of H-1B visas limited each year (capped at 65,000, and another 20,000 for U.S. advanced degree holders), the H-1B selection process has historically operated on a random-selection, lottery-based system when registrations exceed the annual limit. Beginning with the FY 2027 H-1B cap registration season (March 2026 cap season), selection for H-1B visas will be based on the highest Occupational Employment and Wage Statistics (OEWS) wage level, with weighted selection as follows for registrations for unique beneficiaries:

 

(1)   Assigned wage level IV will be entered four times;

(2)   Assigned wage level III will be entered three times;

(3)   Assigned wage level II will be entered two times, and

(4)   Assigned wage level I will be entered into the selection pool one time.

 

Changes to the H-1B Cap Registration Process:

  • When registering online, each registrant must indicate the applicable wage level, location of the offered job, and Standard Occupational Classification (SOC) code.
  • The wage level is based upon the wage offered and the corresponding OEWS wage level that the offered wage meets or exceeds; it is not based upon the LCA minimum wage. 
  • If a beneficiary is selected, petitioners will 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.
  • An H-1B petition (including LCA) filed after registration selection must contain the same identifying information and position information, including OEWS wage level, SOC code, and area of intended employment provided in the selected registration.
  • USCIS will deny a subsequent new or amended petition or revoke an approved petition if it determines 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.

This change, along with the $100,000 fee recently announced for new H-1B petitions when a person is outside the United States, as well as increased H-1B audits and investigations, is aimed to severely limit the H-1B petitions filed. In particular, it will  impede the ability for some employers to hire entry level positions (wage Level I), which is the usual wage level when a person is hired in F-1 OPT for 12 months and then needs to change to H-1B.

 

In preparation for the new weighted selection system, employers and their immigration counsel will need to prepare more for each registration. It won’t be possible to simply register a foreign national in the H-1B lottery without assessing job duties, coding, and wages. 

 

It is expected that this new rule will be challenged in court.  If the USCIS succeeds, it will need to publish instructions on completing and submitting H-1B cap registration under this new rule.

 

Please contact T&R if you have any questions or concerns.