Following Friday's announcement of a $100,000 H-1B entry fee, the U.S. Department of Homeland Security (DHS) is proposing to amend H-1B regulations. The proposal would change the rules governing the process by which U.S. Citizenship and Immigration Services (USCIS) selects H-1B cap-subject petitions (or H-1B petitions for any year in which the registration requirement is suspended). The agency is moving away from a purely random lottery selection process to a weighted process to favor the selection of higher-skilled and higher-paid workers.
This proposal maintains the opportunity for employers to obtain H-1B workers at all wage levels, but lesser-paid registrants will be less likely to be selected. Specifically, this proposal would weigh registrations for selection generally based on each beneficiary’s equivalent wage levels. The agency clarified that,
When random selection is required because USCIS receives more registrations than USCIS projects to be needed to meet the [cap], USCIS would conduct a weighted selection among the registrations for unique beneficiaries (or petitions) received generally based on the highest Occupational Employment and Wage Statistics (OEWS) wage level that the beneficiary’s proffered wage would equal or exceed for the relevant Standard Occupational Classification (SOC) code in the area(s) of intended employment.
The proffered wage is the wage that the employer certifies that it intends to pay the foreign worker.
The proposed weighting process will work as follows:
Under the proposed process, registrations for unique beneficiaries or petitions would be assigned to the relevant OEWS wage level and entered into the selection pool as follows: registrations for unique beneficiaries or petitions assigned wage level IV would be entered into the selection pool four times, those assigned wage level III would be entered into the selection pool three times, those assigned wage level II would be entered into the selection pool two times, and those assigned wage level I would be entered into the selection pool one time. Each unique beneficiary would only be counted once toward the numerical allocation projections, regardless of how many registrations were submitted for that beneficiary or how many times the beneficiary is entered in the selection pool.
If you think of the selection process as a raffle, petitions offering a higher salary would get more raffle tickets, and thus more chances to win.
This process makes no changes to the actual wage level regulations currently in effect, and thus does not require employers to actually pay foreign workers more relative to their respective wage levels. The proposed rule will just make it less likely that workers at lower wage levels will be selected.
H-1B Reforms Are Needed to Protect U.S. and Foreign Workers
Many Americans know that the H-1B statute says that employers must pay workers the higher of the actual wage provided to their employees in the same or similar occupations or the prevailing (average) wage for that occupation in the region where the employee will be working. What many do not know, however, is that the law instructed DOL to set four wage rates, through regulation, to correspond to how much an employer is required to pay a foreign worker based on their level of experience. Here, three of the four wage rates DOL set are at or below the prevailing or average wage. (Wage percentiles are currently set at Level I: 17 percent; Level II: 34 percent; Level III: 50 percent; Level IV: 67 percent.)
Unsurprisingly, the vast majority of H-1B workers petitioned for by employers are at the first or second wage rates — requiring these employers to pay these workers the 17th or 34th percentile of the prevailing wage (what an average worker in that occupation and region makes). Data provided by the Department of Homeland Security in November 2020 showed that the two-year average of H-1B selections for FY 2019 and FY 2020 indicated that 85 percent of employers were paying at wage levels I or II. Additionally, 90 percent of petitions that claimed an advance degree exemption were given to employers paying at wage levels I and II. Moreover, in this rulemaking, DHS noted that in every fiscal year from FY 2019 to FY 2024, petitions for beneficiaries at wage levels III and IV (the higher of the four wage levels and the only two that meet or exceed the prevailing wage) were the least represented among all wage levels in cap-subject H-1B filings, both under the regular cap and the advanced-degree exception.
This is a loophole that allows employers to lawfully underpay foreign workers and put them at a competitive advantage against their American peers. While DHS’s proposed rule does not fix the wage rate regulations — a reform that is greatly needed and must be taken on by the Department of Labor — it will at least give higher-paid workers an edge against potentially underpaid foreign workers in the selection process. When considering that salaries are a reasonable proxy for a worker’s experience and value to a business, this will also help clear the way for the United States to admit the “best and brightest” workers and reduce the risk that doing so will suppress domestic wages in industries that participate heavily in the H-1B program.
Participate in the Rulemaking Process
Anyone can take part in this rulemaking process by submitting a public comment. The regulation is scheduled to be formally published in the Federal Register tomorrow, September, 24, and the comment period for this proposed rule will be open for 30 days after publication (most likely ending on October 24). During this time, members of the public can submit feedback, including support, opposition, or relevant policy alternatives, through regulations.gov — enter "DHS Docket No. USCIS-2025-0040" in the search box. Generally, all comments are publicly available for review, and agencies must review and respond to all relevant comments before they can finalize the regulation.