In a notice of proposed rulemaking that will be published in the Federal Register on September 24, the Department of Homeland Security (DHS) is attempting to change the yearly computerized H-1B cap lottery system to favor applicants who have the highest wage for their occupation and area of employment as determined by the Department of Labor’s Occupational Employment and Wage Statistics (OEWS). Days after President Trump signed an executive order mandating that certain H-1B petitions filed on or after September 21, 2025, be subject to a $100,000 charge, the proposed rule was announced.
How this system works:
The Department of Labor’s OEWS Wage Levels would serve as the foundation for the proposed modification to the H-1B quota allocation process. A weighted mechanism would be used to get the beneficiaries who registered for the H-1B cap lottery into the selection pool. There would be four entries into the selection pool for beneficiaries whose offered wage matched Level 4 (the highest tier) of the Department of Labor’s four-level wage structure. We would enter a Level 1 beneficiary once, a Level 2 beneficiary twice, and a Level 3 beneficiary three times.
When registering a candidate for the H-1B cap lottery, employers must specify the relevant occupational code, OEWS salary level, and region of employment. Should a beneficiary be chosen in the lottery, proof that the pay level listed in the registration was suitable for the occupation would have to be included in the employer’s USCIS Form I-129 H-1B petition. If USCIS found that the petitioner tried to unfairly increase the odds of a beneficiary being selected by choosing an inappropriate wage level or by altering the wage offered to a lower wage level in the petition than that indicated in the beneficiary’s lottery registration, USCIS could reject the petition (or revoke, if it has already been approved). However, USCIS may, at its discretion, determine that a change in the intended work location (corresponding to a lower wage level) would be permissible, provided that it views the change as consistent with a bona fide job offer at the time of registration. This is because the proposal acknowledges that there are valid reasons why an intended work location might change between the time of registration and the time of filing the petition.
Although the regulation proposed today is simply a proposal, it may be approved in time to impact the FY 2027 H-1B cap season, which starts in March 2026. If the rule is put into effect, well before USCIS starts taking registrations for the FY 2027 cap, companies and their immigration counsel would have to decide on the right salary level for each potential H-1B applicant. If the rule is implemented as suggested, it may restrict businesses’ access to certain applicants, especially those who are paid at Level 1, the DOL wage system’s entry-level tier.
Luke Bowman Law will continue to monitor and update the situation. If you have questions regarding your specific situation, feel free to contact us or book an appointment here
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Sincerely,
Luke Bowman
The Law offices of Luke Bowman