The Issue 

The Department of Homeland Security (DHS) has drafted regulations that will change the way H-1B registrations are selected for cap subject petitions and it is expected to be published shortly for public review and comment.  

On August 28, 2025, DHS has published a proposed regulation altering the long-standing policy of admitting F and J students for the duration of their status.1 The 30-day comment period for this regulation ends on September 29, 2025. 

A Deeper Dive 

H-1B Proposed Rule 

In early August 2025, a proposed rule entitled, “Weighted Selection Process for Registrants and Petitioners Seeking to File Cap-Subject H-1B Petitions” cleared final governmental review and it is anticipated that it will be published in the Federal Register in the near future. Upon publication, interested parties will likely have 30 days to submit written comments to the proposal. 

While no details are publicly available as to the substance of the rule, there are two likely scenarios as to its content: 

• Scenario #1: The new rule closely mirrors a similar proposal from 2020, which was never finalized, in which USCIS selects H-1B registrations received based on the highest government wage level that the job’s salary equals or exceeds for the job in the area of intended employment. 

 

• Scenario #2: The use of the term “Weighted Selection” in the title of the proposal suggests that the selection process will provide registrations containing higher level salaries with increased chances for selection. For example, a job listing a Level 4 wage offer may be four times as likely to be selected as a Level 1 wage offer. 

F-1 Period of Admission 

DHS has now finalized a proposed rule to establish a fixed period of admission as well as an extension of stay procedure for F-1 students and J-1 exchange visitors. As expected, the rule mirrors a proposed regulation from 2020. Rather than provide F and J nonimmigrants with a “duration of status” (D/S) admission, individuals applying for admission in either F or J status will be admitted only until the program end date noted on their Form I-20 or DS-2019, up to a maximum of 4 years, plus 30 days following their program end date. F and J nonimmigrants who need additional time would have to file an extension of stay application. Meltzer Hellrung will provide a more detailed analysis of the proposed rule shortly.  

What This Means for Employers 

After the public comment period has ended, both regulations will go through a mandatory review process, and it may be several months before either rule is published in final form. Final rules typically become effective 30 days after publication.  

While far from certain, it is foreseeable that the proposed H-1B rule may be prioritized by the Administration with the goal of having in effect for the Fiscal Year 2027 registration process which begins in early 2026. It is also possible that next year will be the last registration process in which applicants are not selected based on the salary offered.   Accordingly, employers may wish to accelerate the review of their sponsorship plans for next year’s registration cycle to determine the best strategy for retaining talented foreign nationals in their workforce.  

For F and J nonimmigrants working pursuant to practical training, employers will need to develop procedures for tracking Form I-94 expiration dates to ensure extensions of stay are timely filed, thus avoiding gaps in work authorization. U.S. colleges and universities will also have significant additional compliance monitoring responsibilities to ensure eligible students remain in valid immigration status throughout their studies. Both may wish to consider the budget and staffing implications of these new responsibilities. 

Meltzer Hellrung will continue to monitor both regulatory proposals closely and will provide updates as additional information becomes available. In the meantime, please contact your Meltzer Hellrung professional should you wish to discuss either proposal in more detail. 

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