DHS Seeks to Change Cap Subject Lottery System to Favor Higher Paid Employees

in Immigration Actions Trump 2.0
September 25th, 2025

USDHS published a proposed rule entitled Weighted Selection Process for Registrants and Petitioners Seeking to File Cap-Subject H-1B Petitions on September 24, 2025 that aims to tighten eligibility, increase oversight of employers, and limit third-party placements.

The proposed rule seeks to change the H-1B lottery for cap subject employers to favor higher paid employees. The proposed rule process gives greater odds of lottery selection for both the 65,000 regular cap and the 20,000 advanced degree exception cap to beneficiaries with the highest wages according to the Department of Labor’s four-level prevailing wage system. Under the proposed rule, beneficiaries registered for the H-1B cap would be entered into the selection pool in a weighted manner (1-4 times) based on the wage offered by their prospective employer. For examples, a beneficiary offered a Level 4 wage (the highest level) would be entered into the selection pool four times; a Level 3 beneficiary would be entered three times; a Level 2 beneficiary would be entered two times; and a Level 1 beneficiary would be entered only once.

DHS will accept public comments from interested parties until October 24, 2025.

It is still way too soon to know if, when or how this rule might be implemented. The proposed weighted selection system would not take effect until the regulation cleared the federal rulemaking process and was finalized, which typically takes several months. Court challenges to a final rule are possible.