The H-1B lottery in the US is being tipped heavily in favor of high-wage earners under a long-awaited rule proposal unveiled on Tuesday.
The US Department of Homeland Security’s Citizenship and Immigration Services (USCIS) has released the text of a proposed rule that was first advanced in July, which would shift the H-1B program from a purely randomized lottery to a wage-weighted draw favoring applicants with higher-paying job offers.
H-1B visas are designed to attract talented individuals to fill high-skill roles – ostensibly ones that would be difficult to fill with American workers. The program is limited to 85,000 people annually, after which point a lottery is held to randomly select applicants. If fewer applications are received, the lottery is not held, but that hasn’t been the case in more than a decade.
The current process was defined during the Biden administration and limited H-1B lottery entries to one per person, regardless of the number of qualifying H-1B job offers an individual had received. The newly proposed rule keeps the one-to-one entry system for each unique applicant but weights the lottery by wage level, giving up to four entries to those with the highest-paying offers.
“When random selection is required … USCIS would conduct a weighted selection among the registrations … generally based on the highest Occupational Employment and Wage Statistics (OEWS) wage level that the beneficiary’s proffered wage would equal,” the proposal explains.
For those unfamiliar, the Bureau of Labor Statistics’ Occupational Employment and Wage Statistics (OEWS) program compiles salary data for hundreds of occupations, reporting average pay and percentiles. The Department of Labor uses that data to define four prevailing wage levels for H-1B purposes, which roughly correspond to the 17th, 34th, 50th, and 67th percentiles of wages in a given occupation.
Software developers, for example, earn anywhere from $79,850 at the 10th percentile to $211,450 at the 90th percentile, according to May 2024 OEWS figures. That data underpins DOL’s wage-level system. As far as USCIS and DHS are concerned, “salary generally is a reasonable proxy for skill level.”
Under the proposal, USCIS would keep its beneficiary-centric lottery but weight it by wage level. Level IV jobs would get four entries in the draw, Level III three, Level II two, and Level I one. Each unique person would still count only once toward the annual cap, regardless of how many registrations they received.
USCIS argues that prioritizing higher wage levels better serves Congressional intent by favoring higher-skilled, higher-paid roles and discouraging use of H-1B for lower-paid positions.
“Pure randomization does not serve the ends of the H-1B program or Congressional intent to help U.S. employers fill labor shortages in positions requiring highly skilled workers,” USCIS said in the rule proposal. It noted that wage levels three and four workers were the least represented in H-1B applications between FY 2019 and FY 2024, suggesting that companies were more interested in reducing labor expenses than filling jobs with talent that couldn’t easily be found at home.
“The changes proposed in this rule would better ensure that the H-1B cap selection process favors relatively higher-skilled, higher-valued or higher-paid foreign workers rather than continuing to allow numerically-limited cap numbers to be allocated predominantly to workers in lower skilled or lower paid positions,” USCIS said.
The news follows a Friday proclamation from President Trump that imposed a $100,000 fee on employers for new H-1B petitions filed after September 21, with limited exemptions. Existing H-1B holders and approvals filed before that time aren’t subject to the fee.
As the rule is just a proposal, changes could be made between now and when it goes into effect. Those concerned about the changes can submit a comment for the next 60 days, after which USCIS will make revisions. ®