Key Takeaways for Employers 

DHS has issued a final rule changing how USCIS selects H-1B cap registrations in years when demand exceeds the statutory limit. Instead of a purely random lottery, USCIS will implement a wage-based weighted selection system that increases selection odds for registrations tied to higher wage offers. 

DHS states the rule will be effective on February 27, 2026 and will be in effect for the FY 2027 H-1B registration season for the lottery conducted in March 2026. It is being issued without changes from the proposed rule. Litigation challenging the rule is likely to be filed soon. 

What’s Changing: From Random Lottery to Weighted Lottery 

Under the current system, eligible registrations have the same chance of selection. Under the new system, USCIS will still select registrations randomly, but higher wage levels will receive more entries in the selection pool, increasing their odds. 

The weighting system is based on the Occupational Employment and Wage Statistics (OEWS) levels used in the prevailing wage system. The number of entries will correspond to the wage level assigned to the salary offered for the job at the area of intended employment as follows: 

• Level I: 1 entry 

• Level II: 2 entries 

• Level III: 3 entries 

• Level IV: 4 entries 

Additional Information Required at Registration 

The rule also expands the required information employers must submit with each registration. In addition to beneficiary details, employers will need to include: 

• the SOC code for the job 

• the area of intended employment 

• the applicable OEWS wage level (based on the wage offered) 

USCIS will also require petitioners to submit evidence to support the wage level indicated at registration when filing an H-1B petition for a selected employee. 

DHS’s Estimated Selection Odds 

DHS projects that wage weighting will significantly change selection probabilities. Under the current random system, DHS estimates selection probability at 29.6% across all wage levels. Under the new weighted system, DHS estimates selection odds will vary by wage level, and significantly benefit Levels III and IV: 

• Level I: ~15% 

• Level II: ~31% 

• Level III: ~46% 

• Level IV: ~61% 

Changes In Work Location 

If the area of intended employment changes after registration but before the H-1B petition is filed, DHS may treat this as a material change if it would have affected the wage level used in the selection.  

• In that situation, USCIS may determine the original selection is no longer valid and deny the petition if filed. 

• If there is a material change in the worksite location after the H-1B petition is approved, existing H-1B rules continue to apply, including the requirement of a new or amended LCA, and an amended H-1B petition. 

Why DHS Says It is Doing This 

DHS received thousands of comments opposing its proposal, including concerns that it disadvantages smaller employers and early-career roles. DHS rejected those criticisms and stated the current random lottery is not “fair” because it encourages the use of lower-wage H-1B hiring. DHS describes weighting as a way to better align selections with the program’s “high-skilled” purpose. 

What Employers Should Do Now 

Employers should begin preparing now, especially if they routinely sponsor recent college graduates in Level I roles: 

1. Review anticipated cap filings to estimate the impact of the new rule on registration outcomes.
2. Review job levels for commonly used occupations and develop wage strategies where appropriate (e.g., positions near higher wage level thresholds).
3. Retain detailed documentation of occupation/wage level determinations so the wage level asserted at registration can be supported at petition filing.
4. Evaluate alternative visa options (e.g., O-1, TN, E-3, H-1B1, STEM OPT timing) for roles likely to fall in Level I.

How Meltzer Hellrung Can Help 

Meltzer Hellrung advises employers on cap strategy, wage and classification compliance, and workforce planning. We can help analyze wage-level distribution and selection probabilities for prospective H-1B hires, develop required supporting documentation, and identify alternative immigration pathways. 

 

If you would like to discuss how the weighted selection rule may affect your H-1B program, please contact your Meltzer Hellrung professional. 

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