The rule claims that the aim is to prioritize higher-skilled and higher-paid workers, though significant concerns remain for small businesses, non-profits, and recent graduates. This new rule, which implements a weighted selection process, marks a shift from the previous random lottery system.
Here’s what you need to know about these changes and their potential impact on employers and applicants.
Understanding the Weighted Lottery System
The core of the new rule is the introduction of a weighted lottery system for H-1B visa applications. Unlike the previous random selection process, this system prioritizes applicants based on their wage levels, as determined by the Occupational Employment and Wage Statistics (OEWS). Here’s how it works:
- Higher Wage Levels, Higher Chances: Applicants with higher wage levels (Levels III and IV) will have increased chances of selection compared to those with lower wage levels (Levels I and II). For example, beneficiaries at a Level IV wage will have a selection chance of over 61%, while those at Level III will have over 45%.
- Incentivizing Higher Wages: The goal is to encourage employers to offer higher wages and seek higher-skilled workers, thus reducing the exploitation of the H-1B program for lower-paid, lower-skilled positions.
What Employers and Applicants Should Prepare For
While the published Federal Register Notice does not provide a detailed list of specific information required for H-1B registration, it implies that certain key details will be required in the registrations:
- Wage Level Information: Employers must provide information about the wage level being offered to the H-1B beneficiary. This includes both the Standard Operational Classification (SOC) and wage level.
- Registrants must select the highest Occupational Employment and Wage Statistics (OEWS) wage level that the beneficiary’s wage equals or exceeds. They must also provide the SOC code for the position and the area of employment.
- Position Requirements: Details about the position, including the skills and qualifications required, may be necessary to justify the wage level.
- This will need to also be submitted with the petition to justify the wage level selected and establish that the beneficiary meets the requirements. H-1B petitions filed after registration selection must contain and be supported by the same identifying information and position details, including OEWS wage level, SOC code, and area of intended employment, as provided in the selected registration.
- Salary Details: The actual salary offered will be used to confirm the corresponding wage level for the weighted selection process.
Like the past two years, USCIS will continue to use the beneficiary-centric selection process. Under this approach, registrations are selected by the individual beneficiary, rather than by the registration or company. In other words, even if a beneficiary has multiple registrations in the lottery or their name entered multiple times in the selection pool because of the weighted lottery, the beneficiary will only be selected once.
This new regulation does not change the H-1B modernization rule that was published last year. For more information on the H-1B modernization rule, you can visit: https://www.kolkocasey.com/h-1b-modernization-rule/
Conclusion
The new H-1B visa lottery system represents a significant shift towards a more merit-based selection process. Employers and applicants should stay informed about these changes and prepare accordingly to navigate the updated process successfully.
While the new rule is expected to incentivize employers to offer higher wages and seek higher-skilled workers, recent graduates with a Bachelor’s degree will likely have more difficulty being selected in the weighted lottery.
For more detailed guidance, and to learn more about the H-1B FY2027 CAP registration process, please reach out to Kolko & Casey, P.C. for a consultation with one of our experienced attorneys.
About the Author
Petula McShiras is a Senior Associate Attorney at Kolko & Casey, P.C. Petula specializes in employment based, naturalization and family based immigration matters.
