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    Labor & Employment Law Daily Wrap Up, FEDERAL REGULATIONS—Final rule will implement weighted selection process to H-1B visas, (Jan 2, 2026)

    By Brandi O. Brown, J.D.

    The final rule was issued as previously proposed, without modifications, and is effective February 27, 2026.

    The Department of Homeland Security has published in the Federal Register a final rule that will implement a weighted selection process for re ...

    By Brandi O. Brown, J.D.

    The final rule was issued as previously proposed, without modifications, and is effective February 27, 2026.

    The Department of Homeland Security has published in the Federal Register a final rule that will implement a weighted selection process for registrants and petitioners seeking to file cap-subject H-1B petitions. The process will generally favor allocation of H-1B visas to higher-skilled and higher-paid aliens and will be effective in time for the FY 2027 registration season.

    More registrations than needed. Pursuant to the rule, when random selection is required because USCIS has received more registrations (or petitions) than it projects to be needed to meet the numerical allocations, it will conduct a weighted selection among the registrations for unique beneficiaries (or petitions) received generally based on the highest Occupational Employment and Wage Statistics (OEWS) wage level that the beneficiary’s proffered wage will equal or exceed for the relevant Standard Occupational Classification (SOC) code in the area(s) of intended employment.

    Wage level, entry numbers. Under this process, according to USCIS’s new regulation, registrations for unique beneficiaries or petitions will be assigned to the relevant OEWS wage level and entered into the selection pool in the following manner: registrations for unique beneficiaries or petitions assigned wage level IV will be entered into the selection pool four times, those assigned wage level III will be entered into the selection pool three times, those assigned wage level II would be entered into the selection pool two times, and those assigned wage level I will be entered into the selection pool one time.

    Each unique beneficiary, the rule instructs, will 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.

    Severability. DHS also notes that although it is not codifying a severability clause in the regulatory text, it “intends for the provisions of this rule to be severable from one another as well as severable from the registration requirement more broadly and the beneficiary-centric selection methodology.” It states that the absence of such language from the rule “is solely to avoid potential confusion within 8 CFR 214.2, which governs a wide range of nonimmigrant classifications beyond the H—1B program and already contains multiple other severability provisions.”

    Notably, the final rule was issued as proposed in September, without modifications. The final rule is effective February 27, 2026.

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