On September 23rd, 2025, the U.S. Department of Homeland Security published an “unofficial” version of its proposed rule for the selection of applications for the FY2027 H Cap, entitled “Weighted Selection Process for Registrants and Petitioners Seeking to File Cap.” This new rule will seek to revamp the process by which H-1B applications are selected through the Cap process. The new Proclamation requiring a $100,000 fee per new petition may make this selection process moot if the number of applications do not exceed the allotted numbers of visas available.
The way that the proposed selection process will work is by weighting each application in the pool based on proffered Wage level. The proposed selection process will mean that: 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 two times, and a beneficiary assigned wage level I would be entered into the selection pool one time.” This process, akin to the weighted manner in which the basketball lottery is determined, will mean that all wage levels will have a chance at selection but those with a higher wage level will have a better chance of being selected.
At the time of registration, the wage level, SOC Code, and work location for each applicant will need to be included. Amendment petitions filed for selected applicants that include changes to the wage level, SOC code, and work location will be closely scrutinized.
The proposed rules also have enforcement mechanisms based on ensuring that the selection process is not subject to manipulation by entering information in the selection process that then is not enacted upon post selection. Companies will have to determine how to approach this lottery process. Our recommendation will be to approach the lottery as companies always have – only register for individuals for whom there is a bona fide position available and ensure that Wage Levels are determined by business rationale.
The proposed rule, which is expected to be published in the Federal Register on September 24, 2025, will have a 30-day comment period post-publication and will be enacted as a Final Rule thereafter. We will provide updates as the process evolves.
Please feel free to contact USILAW with any questions or issues that you may have. You may reach us via telephone at +1 (202) 618 4540 or via email at info@usilaw.com.