In a time of dramatic change and upheaval across the full spectrum of immigration law and employment-based immigration, few aspects have received as much attention and sparked as much debate as the H1-B visa program. The overhaul of this visa, relied upon by thousands of skilled foreign nationals and talent-hungry employers alike, reached its likely apex on December 29, 2025, when the Department of Homeland Security (DHS) published a Final Rule that fundamentally transforms how H-1B visas are allocated under the annual cap.
The move from a random lottery system to a weighted selection process, which takes effect February 27, 2026, represents one of the most significant structural changes to the H-1B program in decades. Here is what employers and visa-seekers need to know about the new visa selection process and related modifications to the program.
The Big Change: Weighted Selection
For years, U.S. Citizenship and Immigration Services (USCIS) has used a random lottery system when H-1B registrations exceed the 65,000 annual cap (20,000 more spots are allocated for advanced degree holders). Under the new Final Rule, DHS replaces this pure randomization with a weighted system that favors higher-paid positions while still allowing participation at all wage levels. According to DHS, the rule was designed to align with Presidential Proclamation 10973, which directed the Secretary of Homeland Security to prioritize admission of high-skilled, high-paid foreign workers. This is the same proclamation that requires employers to pay an additional $100,000 per petition for new H-1B applicants living abroad or otherwise requesting consular notification, port of entry notification or pre-flight inspection.
Here's how the new system works: Each beneficiary's registration will be entered into the selection pool multiple times based on the Occupational Employment and Wage Statistics (OEWS) wage level that their offered salary equals or exceeds. Those levels and entries are as follows:
- Wage Level I: One entry
- Wage Level II: Two entries
- Wage Level III: Three entries
- Wage Level IV: Four entries
Critically, each unique beneficiary still counts only once toward the numerical cap, regardless of how many times they're entered in the pool.
Higher Chances of Selection for Higher-Paid Positions
As discussed in the Final Rule, DHS anticipates significant shifts in the likelihood of a registration being selected, with those for higher-wage positions dramatically increasing and those for lower-wage and entry-level jobs seeing an equally dramatic decline. Previously, all registrations had an approximately 29.59% chance of selection. Under the new weighted system, and based on patterns similar to recent years, the probabilities of selection are likely to be:
- Level I: 15.29% probability (down from 29.59%)
- Level II: 30.58% probability (essentially unchanged)
- Level III: 45.88% probability (up 55% from current odds)
- Level IV: 61.17% probability (more than double current odds)
New Registration Requirements
The Final Rule imposes additional information requirements at the registration stage. Registrants must now provide:
- The applicable OEWS wage level for the position
- The Standard Occupational Classification (SOC) code
- The area of intended employment
If OEWS prevailing wage data isn't available for a particular occupation and location, registrants must use the wage level corresponding to the requirements of the position based on DOL guidance. When a beneficiary will work in multiple locations or positions with different wage levels, the lowest equivalent wage level applies.
Importantly, petitioners must later submit evidence supporting the wage level indicated in the selected registration. USCIS may deny or revoke petitions if it determines that changes were made to unfairly increase selection chances or if inconsistencies exist between the registration, Labor Condition Application, and petition.
How Employers Can Adapt to the New H1-B System
As noted, the changes to the H1-B program as set forth in the Final Rule take effect on February 27, 2026. Employers that seek and rely on H1-B workers to fill critical positions can prepare for this new visa landscape by taking these steps:
- Review compensation structures for positions they plan to fill with H-1B workers.
- Consider adjusting salary offers to improve selection probabilities for highly valued candidates.
- Ensure accurate SOC code classifications and documentation.
- Prepare evidence to support wage level determinations at the petition stage.
Regardless of the merits of these changes and whether or not they ultimately accomplish DHS's stated goals, employers face a new future in which they will need to reevaluate and modify their immigration hiring strategies to reflect the reality of an H1-B system weighed heavily in favor of high-skilled, highly paid workers that is simultaneously and systemically prejudicial for jobs at the other end of the spectrum.
If you have questions regarding these changes to the H1-B visa programs or would like assistance reviewing your company's immigration-based hiring and employment efforts, please contact Keri Kemmerzell or Melissa Jones at Tydings.