Introduction
On December 23, 2025, the U.S. Department of Homeland Security (DHS) fundamentally transformed the H-1B program by releasing a final rule titled **“Weighted Selection Process for Registrants and Petitioners Seeking to File Cap-Subject H-1B Petitions.”**^1 This regulation replaces the long-standing random lottery with a system that assigns selection weight based on wage levels, effectively prioritizing the highest-skilled foreign professionals.^2 Sweekrutha Shankar, a Partner at Shankar Ninan & Co. LLP, prepared this article to analyze the shift from chance-based to merit-based visa allocation.^3 Ms. Shankar, who earned her J.D. from Touro College Law Center and a B.S., cum laude, in Finance from Temple University, leads a practice that manages over 850 H-1B petitions annually.^4 Recognized as a New York Metro SuperLawyers Rising Star from 2018 to 2024, she specializes in navigating complex immigration requirements for the IT, finance, and pharmaceutical industries.^5
The Mechanism of Weighted Selection
The primary objective of the new rule is to implement the H-1B numerical cap in a manner that incentivizes employers to offer higher wages or petition for positions requiring higher skills.^6 Starting with the upcoming fiscal year, unique beneficiaries will no longer have an equal 1-in-N chance of selection.^7 Instead, USCIS will assign beneficiaries to selection pools based on the highest Occupational Employment and Wage Statistics (OEWS) wage level that their proffered wage equals or exceeds for the relevant Standard Occupational Classification (SOC) code and area of intended employment.^8
The weighting is strictly tiered:
- Wage Level IV beneficiaries are entered into the selection pool four times;^9
- Wage Level III beneficiaries are entered three times;^10
- Wage Level II beneficiaries are entered two times; and^11
- Wage Level I beneficiaries are entered one time.^12
While unique beneficiaries are still counted only once toward the numerical allocation, those in higher wage tiers enjoy significantly higher probabilities of selection.^13 DHS estimates that the selection probability for Level IV registrants will rise to over 60 percent, whereas Level I registrants—typically entry-level workers—will see their chances plummet.^14
Policy Alignment and Economic Justification
This regulatory overhaul directly implements Presidential Proclamation 10973, issued on September 19, 2025, which directed DHS to prioritize high-skilled and high-paid aliens.^15 The Proclamation identified systemic abuse where U.S. workers were replaced by lower-paid foreign labor, particularly in STEM and computer science fields.^16 To further address this, the Proclamation imposed a $100,000 fee for certain H-1B petitions to discourage reliance on low-wage outsourcing models.^17
DHS asserts that a wage-based system better serves the original congressional intent of the H-1B program: helping U.S. employers fill labor shortages in highly specialized positions while protecting the domestic labor market.^18 Economically, DHS projects that the shift will result in a first-year transfer of approximately $502 million in wages from lower-paid Level I workers to higher-skilled professionals.^19
Safeguarding Program Integrity
To prevent employers from artificially inflating wage levels to “game” the weighted lottery, the rule introduces several integrity measures:
- Bona Fide Job Offers: Registrants must certify under penalty of perjury that the registration represents a bona fide job offer and that they intend to file a petition if selected.^20
- Information Consistency: The subsequent H-1B petition must be supported by the same SOC code, area of intended employment, and OEWS wage level provided during registration.^21
- Denial and Revocation Authority: USCIS may deny a petition or revoke an approval if it determines the employer attempted to unfairly increase the odds of selection, such as by later reducing the proffered wage to a lower level than indicated at registration.^22
- The “Lowest Level” Rule: If a position involves work in multiple locations or for multiple SOC codes, the employer must register the beneficiary at the lowest corresponding wage level among those locations or roles.^23
Conclusion
The transition to a weighted selection process is a seismic shift in U.S. employment-based immigration. By using salary as a proxy for skill, the government has replaced a blind raffle with a targeted screening tool.^25 While this change imposes new burdens on small entities and entry-level professionals, it ensures that the 85,000 annual visas are reserved for those who contribute the greatest economic value to the United States.^26
Footnotes
^1 Weighted Selection Process for Registrants and Petitioners Seeking to File Cap-Subject H-1B Petitions, 90 Fed. Reg. (Dec. 23, 2025) (to be codified at 8 C.F.R. pt. 214) [hereinafter Weighted Selection Final Rule].
^2 Id. (Summary of Regulatory Action).
^3 E-Mail, DHS Changes Process for Awarding H-1B Work Visas to Better Protect American Workers (Dec. 23, 2025).
^4 Sweekrutha Shankar – Shankar Ninan, Education and Background.
^5 Id. at Awards.
^6 Weighted Selection Final Rule, 90 Fed. Reg.
^7 Id. (Section II.B Background on H-1B Registration).
^8 Id. (to be codified at 8 C.F.R. § 214.2(h)(8)(iii)(A)(4)(i)).
^9 Id. (to be codified at 8 C.F.R. § 214.2(h)(8)(iii)(A)(4)(ii)).
^10 Id.
^11 Id.
^12 Id.
^13 Id. (Description of the Change).
^14 Id. (Methodology and Adequacy of the Cost-Benefit Analysis).
^15 Proclamation No. 10973, 90 Fed. Reg. 46027 (Sept. 19, 2025).
^16 Id. at 46027.
^17 Id.
^18 Weighted Selection Final Rule, 90 Fed. Reg. (Section II.C Need for Regulatory Reform).
^19 Id. (Section III.G.6 Transfers).
^20 Id. (to be codified at 8 C.F.R. § 214.2(h)(10)(ii)).
^21 Id. (to be codified at 8 C.F.R. § 214.2(h)(8)(iii)(D)(1)).
^22 Id. (to be codified at 8 C.F.R. § 214.2(h)(10)(iii)).
^23 Id. (to be codified at 8 C.F.R. § 214.2(h)(8)(iii)(A)(5)(i)).
^25 Weighted Selection Final Rule, 90 Fed. Reg. (Section III.C.4 DHS Justification for the Rule).
^26 Id. (Section IV.B.1.b Final Regulatory Flexibility Analysis).
