Changes to H-1B Selection Process One Step Closer

The Department of Homeland Security (DHS) has advanced a proposed rule that would modify the annual H-1B cap selection process by introducing a weighted system. The proposal recently cleared review by the Office of Management and Budget (OMB), a key step before publication in the Federal Register.

What Could Change?

Although details of the proposal remain confidential until publication, DHS is expected to consider reforms that would prioritize H-1B registrants based on criteria such as wage level or education, rather than relying solely on the current random lottery system.

This is not the first attempt to change the H-1B selection framework. In the final weeks of the Trump Administration, DHS finalized a rule that would have allocated H-1B visa numbers according to the Department of Labor’s four-tier prevailing wage system. Under that regulation:

• Registrants offered a wage at Level IV (the highest tier) would have been selected first.

• Remaining visas would then be allocated in descending order through Wage Levels III, II, and I.

• A computerized lottery would only have been used if demand within a wage tier exceeded the available cap numbers.

That rule was postponed under the Biden Administration and later vacated by a federal court, never taking effect. It remains unclear whether the new DHS proposal mirrors the earlier wage-based allocation system or introduces different criteria.

Next Steps

The proposed rule is expected to be published in the Federal Register in the coming days or weeks, at which point the public will be invited to submit comments during a 30- or 60-day comment period. DHS must then review and address these comments before issuing a final rule, which would include an implementation timeline. The rulemaking process typically takes several months before changes become effective.

Contact Vong Law Group if your company is interested in strategic H-1B cap planning.