DHS Finalizes New Process for H-1B Visa Lottery

 

The Department of Homeland Security (DHS) published a final rule yesterday that replaces the long-standing random selection process for the annual H-1B visa lottery with a selection system that favors registrations tied to higher paid roles. The rule is scheduled to take effect on February 27, 2026, and will apply to the FY 2027 H-1B lottery season in March 2026.

Under the new framework, H-1B lottery registrations will be entered into the selection pool a number of times based on the offered wage level:

  • Level IV (highest wage level): four entries

  • Level III wage: three entries

  • Level II wage: two entries

  • Level I wage: one entry

Wage levels will be based on the Department of Labor’s Wage Library. Wage levels are location-specific, so the same role may fall into different wage levels depending on the area of intended employment.

This new framework will apply to all H-1B lottery registrations, including those eligible for the advanced degree (“master’s”) limit. The number of visas available will remain unchanged at 65,000 under the regular limit (“cap”) and 20,000 under the US master’s limit.

As under the current system, each beneficiary will be counted only once in the lottery, regardless of how many registrations are submitted on their behalf. If multiple employers submit registrations for the same beneficiary, USCIS will use the lowest wage level among those registrations for determining how many times the beneficiary will be entered into the selection pool. 

To implement this system, employers will be required to provide additional information about the offered role at the registration stage, including:

  • The Standard Occupational Classification (SOC) code;

  • The DOL wage level; and

  • The area of intended employment.

If a registration is selected, the employer must submit documentation with the H-1B petition demonstrating that the wage level listed at registration was appropriate for the position offered. USCIS may deny or revoke an H-1B petition if it determines that an employer attempted to unfairly increase selection odds by listing an inaccurate wage level or offering a lower wage in the petition than what was listed during registration.

DHS received 17,000 comments to the draft (“interim final”) rule it published on September 24, 2025.  Notwithstanding the substantial number of comments by stakeholders, the agency published the final rule today without any modifications (!). 

Relatedly, a federal court upheld the Trump Administration’s $100,000 H-1B fee last week on December 23, 2025, denying the Chamber of Commerce and the Association of American Universities legal challenge to the $100,000 fee.  The court found that the President acted lawfully in imposing this fee. You can read the full decision here. 

Employers and prospective H-1B candidates should begin planning for the FY 2027 lottery season. Early review of job duties, wage strategy, work locations, and supporting documentation will be important for evaluating selection chances under the new framework and compliance.  We would be happy to help you with such strategy sessions. 

We will continue to monitor this development and provide updates as additional guidance becomes available.

 
Nadia Yakoob