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DHS Publishes Proposed Rule for Weighted H-1B Cap Lottery

September 26, 2025

On September 24, 2025, the Department of Homeland Security (“DHS”) published a proposed rule implementing a “weighted” selection process for the Fiscal Year 2027 H-1B cap lottery. Under the proposed rule, registrations for the H-1B cap lottery would need to include standard information such as the beneficiary’s passport or travel document as well as additional information about the beneficiary’s proffered role including the Standard Occupational Classification (“SOC”) code, Occupational Employment and Wage Statistics (“OEWS”) wage level, and area(s) of intended employment.

Each registration would then be “weighted” based on the OEWS wage level that the beneficiary’s proffered wage equals or exceeds for the relevant SOC code in the area of intended employment. Specifically, a beneficiary assigned wage level IV would be entered into the lottery four times, a beneficiary assigned wage level III would be entered into the lottery three times, a beneficiary assigned wage level II would be entered into the lottery two times, and a beneficiary assigned a wage level I would be entered into the lottery one time.

The proposed rule also addresses the situation where a H-1B beneficiary would work in multiple locations. In this scenario, the registration would select the box for the lowest equivalent wage level for each location and would list the location corresponding to that lowest equivalent wage level as the area of intended employment. For example, if a H-1B beneficiary would work as a software developer (SOC code 15-1252) with a proffered wage of $175,000 in both Sacramento, California, where such wage exceeds wage level IV, and San Francisco, California, where the highest level that such wage meets or exceeds would be wage level II, the registrant would select the ‘‘wage level II’’ box on the registration form and list San Francisco as the area of intended employment.

Beneficiaries with multiple registrations submitted on their behalf would be assigned to the lowest wage level of all registrations submitted. For example, a beneficiary for whom a level I registration and a level IV registration have been submitted would be assigned to wage level I for the purpose of weighted selection. Furthermore, when a petitioner relies on a private wage survey and the proffered wage is below OEWS wage level I, a beneficiary would still be assigned wage level I. Similarly, if the proffered wage is expressed as a range, a beneficiary is assigned the OEWS wage level that the lowest wage in the range will equal or exceed.

A petitioner will only be eligible to file an H-1B petition for a beneficiary if it is based on a selected registration. An H-1B petition filed on behalf of a beneficiary must include the same identifying information and position information, including SOC code, wage level, and area of intended employment, that was initially provided in the selected registration and indicated on the Labor Condition Application used to support the petition. USCIS may, in its sole discretion, permit limited changes such as legal name changes, passport renewals, or worksite changes consistent with the original bona fide job offer and wage level.

Please stay tuned to our website for further updates. If you have any questions about how the new proposed rule might affect your company or employees, please contact your attorney directly. To schedule a new consultation with one of our attorneys, please complete our consultation request form.