United States Citizenship and Immigration Services (USCIS) published today a Notice of Proposed Rulemaking that seeks to introduce a new wage-based “weighted” selection process to replace the current random selection process, or lottery, through which H-1B cap registrations are chosen for H-1B petition filing every March.  We reported on the likelihood of the issuance of such a proposed rule in our Alert of August 1, 2025.

USCIS is inviting public comments on the proposed rule for 30 days from today (until October 24, 2025).  The proposed rule will not become effective until the federal rulemaking process is completed and a final rule published.  This may take several months, but it is likely that the final rule will be effective by the time the Fiscal Year 2027 registration process begins in March of next year.

Under the proposed rule, the current random selection process for H-1B cap-subject registrations will be replaced with a selection process that gives preference to registrations that reflect the highest wage levels and incentivizes H-1B petitioners to offer higher wages in order to increase the likelihood that their registrations are selected, even if such wages are higher than those paid to current employees in the same positions.

How Will the Weighted Process Work?

The weighted selection process described in the proposed rule would accord priority to registrations that contain proposed salaries that correspond with the highest Occupational Employment and Wage Statistics (OEWS) wage level. A registration would have to indicate the highest OEWS wage level (Level IV through Level I) that the beneficiary’s proffered wage generally equals or exceeds for the relevant Standard Occupational Classification (SOC) code in the area of intended employment. The registrant would also be required to provide the appropriate SOC code for the proffered position and the area of intended employment that served as the basis for the OEWS wage level indicated.

If, as happens every year, more prospective H-1B beneficiaries have registrations submitted on their behalf during the annual initial registration period than are needed to reach the applicable numerical allocation, USCIS would enter each beneficiary into the selection pool in a weighted manner as follows:

• A beneficiary assigned wage Level IV would be entered into the selection pool four times;
• A beneficiary assigned wage Level III would be entered into the selection pool three times;
• A beneficiary assigned wage Level II would be entered into the selection pool twice; and
• A beneficiary assigned wage Level I would be entered into the selection pool once.

The weighted selection process would continue to be computer-generated and would select a beneficiary only once, regardless of how many registrations were submitted on their behalf or how many times the beneficiary was entered in the selection pool.

What is a Level IV OES Wage?

The H-1B specialty occupation nonimmigrant category requires employers to pay the higher of the actual wage paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question, or the “prevailing wage” for the occupational classification in the area of employment. The most common way of determining the prevailing wage is using the OEWS wages and the Department of Labor’s Prevailing Wage Determination Policy Guidance for Nonagricultural Immigration Programs. This guidance sets the appropriate wage level based on the normal requirements for the occupation and the specific requirements of the offered position.

OEWS wage levels range from Level I (for “entry-level” positions) to Level IV (for “fully competent”) positions. The wage amounts listed in the OEWS Online Wage Library for the four levels per occupational classification correspond to respective percentile wages for the classification and geographical area.

A Level I wage amount corresponds to the 17th percentile of the OEWS wage distribution for a position in a particular geographical area; a Level II wage corresponds to the 34th percentile; a Level III wage corresponds to the 50th percentile; and a Level IV wage corresponds to the 67th percentile.

The practical effect of this levelling is that an H-1B worker whose wage falls within the OES Level IV must be paid more than 67% of the workers in the relevant occupational classification and geographic area. Put another way, the worker receiving an OEWS Level IV wage must be within the most highly paid one-third of employees in the occupational classification and geographic area.

Do the Proposed Rule’s Changes Mean that an H-1B Employer Has to Offer OEWS Level IV Wages to All Prospective H-1B Employees?

Under this new weighted selection regime, a prospective employer that wishes to maximize the likelihood that its H-1B cap registration will be selected would have to offer to the H-1B beneficiary a wage that is at least equal to the OEWS Level IV wage for the beneficiary’s position and location to ensure that the registration receives the maximum number of entries. This is without regard to the fact that this position may be an entry-level role or one for which a lower wage has traditionally been paid, such as a position usually held by a recent university graduate.  Offering a wage that is at the OEWS Level III would reduce the number of entries and thus the likelihood that the registration will be selected.  Given the current demand for H-1B selections, offering a wage that is at the OEWS Level I will almost certainly result in the registration not being selected.

With regard to the probability of selection, USCIS estimates that the probability of being selected would be 15.29 percent for Level I, 30.58 percent for Level II, 45.87 percent for Level III, and 61.16 percent for Level IV.   USCIS also estimates that the percentage change in the probability of being selected from the current to the proposed process would decrease by 48 percent for Level I and would increase by 3 percent, 55 percent, and 107 percent for Levels II, Level III, and Level IV, respectively.

These statistics, which are purely speculative, suggest that registrations with an OEWS Level I wage will have little chance of selection, those  indicating a Level IV wage will have a strong likelihood of selection. Likewise, registrations with a Level III wage should have a chance of selection well higher than the traditional selection percentage in past years, and registrations indicating a Level II wage should have a chance of selection that is slightly superior to this traditional selection percentage. Having an advanced U.S. degree will of course increase the likelihood of selection, as those registrations are entered in the regular lottery and then, if not selected, entered in the advanced degree lottery that is available for an additional 20,000 individuals.  A registration indicating an OEWS Level II wage for a beneficiary with an advanced degree from a university in the United States would therefore have a decent chance of selection.  If these statistics are borne out, the likelihood of selection will increase for all registrations except those involving a Level I wage. This speculation, however, is likely based on the OEWS wage levels of H-1B cap-subject petitions that have been filed historically. The probability of selection may change if petitioning employers inflate their offered wages due to the incentives created by this proposed rule.

How High Are OEWS Level IV Wages?

The following is a sampling of various OEWS Level IV annual wages. These reflect a variety of positions in the Information Technology industry in the San Francisco Bay Area.

• SOC code 15-1252 (Software Developers), Santa Clara County: $264,514
• SOC code 17-2071 (Electrical Engineers), Santa Clara County: $217,630
• SOC code 15-1252 (Software Developers), San Francisco County: $213,512
• SOC code 15-1252 (Software Developers), San Mateo County: $213,512
• SOC code 15-1252 (Software Developers), Alameda County: $213,512
• SOC code 11-3021 (Computer and Information Systems Managers), Santa Clara County: $388,918
• SOC code 15-2051 (Data Scientists), Santa Clara County: $275,850

These wages, which reflect annual base wages only (not total compensation), are obviously extraordinarily high for typical positions of this type and many employers will be unwilling to offer them for positions that do not have the level of seniority associated with such a wage.  In the proposed rule, USCIS notes that prospective employers of H-1B workers may choose to offer a higher wage than usual to increase their competitiveness in the selection process. Per USCIS, an offered wage need not be directly related to the employee’s skill level, and a higher wage can be seen as a reflection of the beneficiary’s value to the employer, which, even if not related to the position’s skill level, reflects the unique qualities the beneficiary possesses.

What Other Measures Are in the Proposed Rule?

The proposed rule acknowledges that OEWS wages are not the sole source of prevailing wages for H-1B purposes. However, if petitioning employers use an alternate wage survey or collective bargaining agreement to set the offered wage, they will still have to determine the SOC code and area of employment. That information would then be used to determine which OEWS wage level the offered salary meets or exceeds, for the purpose of designating the OEWS wage level on the registration. If the offered wage is lower than OEWS Level I, then Level I should be indicated on the registration.

For job opportunities that involve multiple locations, USCIS proposes to enter the beneficiary into the selection pool in accordance with the lowest OEWS wage level that the offered wage meets or exceeds across all locations (e.g., a $175,000 salary that exceeds Level IV in Sacramento but only Level II in San Francisco would indicate Level II on the registration). Similarly, when multiple employers register the same beneficiary in the H-1B lottery, USCIS proposes to enter the beneficiary in the selection pool in accordance with the lowest OEWS wage level across all registrations for that unique beneficiary. These measures are necessary, according to the proposed rule, to prevent “gaming the system.”

T&S Takeaway

Coming on the heels of the White House Proclamation of last Friday that we reported on in our Alert of September 19, 2025, which seeks to impose an additional $100,000 fee on new H-1B petitions, the publication of this proposed rule can be seen as another effort on the part of the presidential administration to make the H-1B category onerous and unattractive to United States employers.  The rule, as noted above, may have the effect of increasing the likelihood of selection for all but those with Level I wages. While the full impact of the Proclamation remains unclear at the moment, this proposed rule seems more certain. It is likely that, absent legal challenges, the H-1B cap weighted selection rule will be implemented—in its current form or slightly modified—in time for the Fiscal Year 2027 H-1B cap registration process in March 2026. At that point, some prospective employers of H-1B workers, particularly those with entry-level employees, will have to balance carefully their need for such workers with the increased wage obligations that seeking H-1B status will entail.