The proposal is expected to significantly increase the selection chances for higher wage levels and decrease them for lower wage levels. 

On September 24, 2025, the Department of Homeland Security (DHS) published a notice of proposed rulemaking, “Weighted Selection Process for Registrants and Petitioners Seeking to File Cap-Subject H-1B Petitions.” If the changes under the proposed rule are implemented, it would overhaul the existing annual H-1B cap registration and selection process from a random lottery to a weighted selection system based on a candidate’s offered wage level.

The new system is designed to prioritize H-1B workers with higher-paying jobs, which DHS believes are more likely to be highly skilled. This Alert provides an overview of the key proposed changes and what they could mean for employers and H-1B candidates.

The Proposed Weighted Selection Process

The proposed rule assigns more weight to H-1B registrations offering higher wages, as determined by the U.S. Department of Labor's Occupational Employment and Wage Statistics wage levels.

Here’s how the weighting would work:

• Wage level IV: Four entries in the selection pool.
• Wage level III: Three entries in the selection pool.
• Wage level II: Two entries in the selection pool.
• Wage level I: One entry in the selection pool.

The proposal is expected to significantly increase the selection chances for higher wage levels and decrease them for lower wage levels. For example, level IV wages could see a 107 percent increase in selection probability, while level I could see a 48 percent decrease.

New Registration and Petition Requirements

Under the proposed rule, prospective petitioners will be required to provide the relevant equivalent wage level and standardized occupational classification code when submitting a registration for each employee.

This information must generally align with the information provided in a subsequent Labor Condition Application submitted with the H-1B petition filed on behalf of beneficiaries of selected registrations.

Program Integrity Measures

The proposed rule also includes several provisions designed to enhance program integrity.

Bona Fide Job Offer

The proposed rule explicitly clarifies that a valid registration must represent a bona fide job offer. This is meant to combat fraud where employers submit registrations for positions that do not exist or for which they have no intention of filing a petition.

Registration Process

The proposed rule also states that U.S. Citizenship and Immigration Services may deny any subsequent new or amended H-1B petition by the same petitioner or a related entity for the same beneficiary if it determines that the filing was intended to game the registration process, such as by lowering the proffered wage in a later filing to a wage level below what was indicated on the registration. A “related entity” includes corporate ownership and control, as well as factors such as familial ties, proximity of locations, leadership structure and similar work assignments.

Who Will Be Impacted

Not all H-1B cases are subject to the cap registration process. Only cap-subject (e.g., for-profit) employers seeking to file new employment H-1B petitions or change-of-employer petitions from a cap-exempt entity are required to submit registrations in the H-1B lottery process. The following are examples of H-1B petitions not currently subject to the cap registration process that would not be impacted by these proposed changes: (1) change of employer, extension and amendment petitions for individuals already working in H-1B status with a cap-subject employer; and (2) initial, amendment or extension petitions filed by cap-exempt employers such as institutions of higher education (nonprofit colleges and universities), nonprofit entities related to or affiliated with an institution of higher education, nonprofit research organizations and government research organizations. These cap-exempt petitioners would not be impacted by the proposed changes.

The public has a 30-day period to comment on the proposed rule. After this period, DHS will review the comments before deciding whether to finalize the rule, with or without changes. It is important to remember that this is a proposed rule and not a final regulation. If finalized, the rule could be subject to legal challenges. We will continue to monitor developments and provide further updates.

Other H-1B Updates

Restriction on Entry of Certain Nonimmigrant Workers Proclamation (September 19, 2025)

• The proclamation imposes a $100,000 fee on some H-1Bs. Should the $100,000 fee be imposed, this proposed rule is unlikely to have a significant impact on the fiscal year 2026 lottery because demand would likely decrease substantially.
• The proclamation directs the Secretary of Labor to revise the prevailing wage levels, which would likely result in higher prevailing wages.

Project Firewall

The U.S. Department of Labor also announced last week the launch of Project Firewall, an H-1B enforcement initiative to maximize program compliance. Project Firewall simply promises to increase enforcement actions—it doesn’t change any of the longstanding H-1B compliance standards or rules in place—so employers with robust H-1B compliance practices already in place should not be affected.

For More Information

If you have any questions about this Alert, please contact Lauren Aucoin, Guilherme Massetti, Kristopher Peters, any of the attorneys in our Immigration Law Group or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.