Proposed DHS Rule Could Reshape the H-1B Lottery

The H-1B visa program is once again in the spotlight. On September 24, the Department of Homeland Security (DHS) formally published a proposed rule that would replace the current random lottery with a weighted, wage-based selection process. Employers relying on H-1B professionals will need to assess the potential impact on their operations.

Refresher on the Current Lottery System

Each year, U.S. Citizenship and Immigration Services (USCIS) makes 85,000 new H-1B visas available:

• 65,000 under the “regular cap.”

• 20,000 reserved for advanced U.S. degree holders.

Employers register their candidates electronically. When demand exceeds the cap (as it has consistently for the past 15 years), USCIS conducts a random lottery to determine which candidates may proceed to file petitions.

The Proposed Change: Weighted by Wage

DHS now seeks to shift from a purely random process to a system that favors higher-paid positions. The proposal introduces four wage levels (based on the Department of Labor’s Occupational Employment and Wage Statistics):

• Level I: 1 entry in the selection pool.

• Level II: 2 entries.

• Level III: 3 entries.

• Level IV: 4 entries.

While beneficiaries would still only be selected once, those offered higher wages would have greater odds of being chosen.

This system would operate alongside the beneficiary-centric registration process introduced in 2024, which was designed to curb fraud and prevent multiple registrations for the same individual.

What Happens Next?

This is not yet final. The rule is subject to the notice-and-comment process, with a 60-day window for the public to provide feedback before DHS decides whether to revise and finalize the regulation.

Business groups are expected to weigh in heavily. The proposal comes on the heels of the $100,000 H-1B fee announced on September 19 and already in effect, both of which have sparked concern across industries.

What Employers Should Do Now

• Work with legal counsel: Review how the proposed wage-based system could affect your hiring strategy.

• Consider submitting comments: Employers can share how the change would impact their operations.

• Stay informed: Follow the comment period, potential litigation, and further rulemaking.

• Educate stakeholders: Ensure HR and management teams understand the proposed changes and can adapt if finalized.

• Explore alternatives: Evaluate other visa options or strategies to support your workforce needs.

Final Thoughts

The administration’s proposal underscores a broader policy trend: reshaping H-1B access to favor higher-paid positions and “high-skilled” workers. Whether this rule becomes final remains to be seen, but employers should begin preparing now.

If your business relies on H-1B talent, now is the time to evaluate how these proposed changes may affect your workforce strategy. Our team at Kirchner Law can help you assess risks, explore alternatives, and prepare for multiple scenarios. Reach out today to discuss options beyond the H-1B program and ensure your business remains staffed and compliant in a shifting immigration landscape.