On December 23, 2025, the Department of Homeland Security finalized regulations fundamentally changing how cap-subject H-1B visas will be selected in years when demand exceeds supply. The rule, which takes effect in February 2026, will apply to the FY 2027 H-1B cap registration season and replaces the traditional random lottery with a wage-weighted selection framework.
The new system operates on top of the existing beneficiary-centric model administered by U.S. Citizenship and Immigration Services. Each foreign national continues to be counted only once for cap purposes, regardless of how many registrations are submitted on their behalf, but the probability of selection will now vary based on the wage level associated with the offered position.
How the weighted selection will operate?
When USCIS determines that random selection is required because registrations exceed the projected number needed to meet the statutory cap, the agency will conduct a weighted selection based on the highest applicable Occupational Employment and Wage Statistics wage level for the offered position.
Registrations corresponding to wage level IV positions will be entered into the selection pool four times. Wage level III registrations will be entered three times, wage level II registrations twice, and wage level I registrations once. This structure significantly increases the probability of selection for higher-paid positions while maintaining some chance of selection at all wage levels.
Each beneficiary is still counted only once toward the numerical cap. The weighting affects probability only and does not allow multiple visas for the same individual.
Impact on international graduates and high-wage candidates
DHS explicitly states that the rule will benefit talented international graduates and other highly skilled foreign nationals who receive job offers at higher wage levels. Because the weighted system increases selection probability for higher wages, such candidates will have materially better odds of selection compared to the prior random lottery, where compensation played no role.
At the same time, DHS emphasizes that the rule does not require employers to offer higher wages. The agency explains that rational employers will not offer wages exceeding the expected value of an employee’s work. Where an employer chooses to offer a higher wage, DHS views that wage as a reflection of the beneficiary’s value to the employer rather than the result of regulatory pressure.
Wage-level requirements at registration and petition stages
The final rule makes wage-level selection a core feature of both registration and petition filing. Employers must select the appropriate OEWS wage level during registration and later confirm that selection on the H-1B petition.
Revisions to the Form I-129 instructions require petitioners filing cap-subject H-1B petitions to submit initial evidence supporting the wage level selected at registration. This may include documentation from Department of Labor wage data sources showing the beneficiary’s SOC code and area of intended employment as of the date of registration.
DHS clarifies that the wage level selected on the petition must reflect OEWS wage data that was current at the time the registration was submitted. Even if wage data changes between registration and petition filing, the petition must continue to reflect the wage level that applied at registration. Petitioners may submit an explanation describing any intervening changes in wage data, but the wage-level selection itself must remain tied to registration-date data.
If the registration process is suspended in a future year, DHS explains that the wage level would instead be determined using wage data current as of the date the petition is filed.
Why DHS requires wage data at registration?
DHS rejects proposals to collect wage information later or to allow flexible wage levels. The agency explains that wage data must be collected at registration because the weighted selection occurs before petition filing. DHS states it does not see another viable way to conduct a weighted selection process without fixing wage information at the registration stage.
The rule also strengthens the attestation requirement. Registrants must certify that the registration reflects a bona fide job offer, and DHS codifies that a valid registration must represent a bona fide job offer—one that exists as described and in which the employer genuinely intends to employ the beneficiary. DHS’s position is that employers should therefore be able to accurately identify the applicable wage level at the time of registration.
Work location, wage reductions, and enforcement authority
The rule grants USCIS explicit authority to deny or revoke petitions where post-selection changes undermine the integrity of the weighted selection process. USCIS may deny a new or amended petition filed by the same petitioner or a related entity if it determines that the filing was part of an attempt to unfairly increase the odds of selection. DHS specifically identifies reducing the proffered wage to a lower wage level than that indicated at registration as prohibited conduct.
USCIS will also deny petitions if it determines that statements made on the registration, petition, labor condition application, or related filings were inaccurate, fraudulent, or misrepresented a material fact. Misrepresentation of job location on the registration, LCA, or petition is independently sufficient grounds for denial. If USCIS later determines that a beneficiary is being employed at a location inconsistent with what was disclosed, the agency may revoke the petition approval after notice.
DHS response to statutory authority challenges
DHS directly addresses claims that the weighted selection process violates the Immigration and Nationality Act or exceeds the agency’s authority. The agency explains that the statute is silent on how USCIS must select H-1B petitions or registrations in years of excess demand and that the statutory language governing filings toward the numerical cap is ambiguous.
DHS concludes that the weighted selection framework is a reasonable interpretation of the statute and well within its general authority to administer and enforce the immigration laws and prescribe the terms and conditions of nonimmigrant admissions.
Practical impact for FY 2027 filings
Beginning with the FY 2027 H-1B season, wage level accuracy, job-location consistency, and registration-stage precision become selection-critical factors. High-wage registrations will enjoy substantially improved odds of selection, particularly benefiting highly skilled international graduates and professionals in strong labor-market demand.
At the same time, compliance risks increase. Errors or post-selection changes involving wage level, SOC code, job location, or attestations can lead not only to petition denial but also to revocation of approvals. The H-1B cap process is no longer a neutral lottery; it is now a probability-weighted system in which compensation and factual accuracy directly determine outcomes.
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