Labor & Employment Law Daily Wrap Up, FEDERAL REGULATIONS—DHS has proposed a weighted lottery system to apply to the cap-subject H-1B visa selection process, (Sep 23, 2025)

By Brandi O. Brown, J.D.

This proposal differs from the rule proposed in 2020 that was withdrawn by DHS in 2021.

The Department of Homeland Security is publishing in the Federal Register a notice of proposed rulemaking regarding cap-subject H-1B visa petitions and the process by which U.S. Citizenship and Immigration Services (USCIS) selects H-1B registrations for unique beneficiaries for filing of them (or H-1B petitions for any year in which the registration requirement is suspended).

Weighted process. DHS has now proposed implementing a weighted selection process that would generally favor allocation of those visas to higher skilled and higher paid aliens but would maintain the opportunity for employers to secure H-1B workers at all wage levels. Specifically, rather than ranking as would have occurred under the 2020 rulemaking, which was vacated by a court and later withdrawn, registrations under this rule would be weighted according to the OEWS wage level, with different levels getting different numbers of entries. So, for example, registrations for unique beneficiaries or petitions assigned wage level IV would be entered into the selection pool four times. At wage level III, there would be three entries; at level II, there would be two entries; and at level I, there would be one entry into the selection pool.

Each unique beneficiary would only be counted once toward the numerical allocation projections, regardless of how many registrations were submitted for that beneficiary or how many times the beneficiary is entered in the selection pool. The rulemaking also notes that this proposed weighting and selection process would not alter the prevailing wage level associated with a given position for U.S. Department of Labor (DOL) purposes.

Comments. Comments must be submitted within 30 days of publication of the proposed rulemaking in the Federal Register; they should be submitted via regulations.gov referencing DHS Docket No. USCIS-2025-0040. Written comments on the associated information collections 1615-0144 and 1615-0009 must be submitted on or before the date that is 60 days after the date of publication in the Federal Register.

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