On September 19, 2025, the administration issued a White House Proclamation requiring $100k fee for H-1B entrants. Just a few days later, on September 25, 2025, Department of Homeland Security (DHS) issued a Notice of Proposed Rule Making (NPRM), proposing a significant change to the H-1B visa selection process, aiming to prioritize higher-skilled and higher-paid workers. This NPRM is separate from the White House $100k Fee Proclamation but will also fundamentally change the H-1B visa program. It is important to understand, and provide public comment on, the proposed rule before the deadline of October 24, 2025.
Current H-1B Visa Selection Process
The H-1B visa allows U.S. employers to hire foreign national employees to fill specialty occupation positions within their organizations. Foreign nationals must have a bachelor’s degree or higher in the specialty occupation field to qualify for the H-1B visa. Currently, there are 65,000 H-1B spots available for new employment per fiscal year. There are an additional 20,000 spots available annually for those individuals with a U.S. master’s degree.
The existing system uses a random lottery to select beneficiaries for H-1B cap-subject petitions. The proposed change introduces a weighted selection process that prioritizes higher-skilled and higher-paid workers.
While this shift from a random lottery to a weighted selection process is designed to utilize the H-1B program to attract top global talent to the U.S. economy, it will have a huge impact on who may be selected in the lottery, recent graduates, and small business and startups.
Key Aspects of the Proposed Changes to the H-1B Visa Selection Process
- Implementation of the weighted selection process:
- Under the current H-1B registration process, employers must electronically register each prospective beneficiary. The U.S. Citizenship and Immigration Services (USCIS) then conducts a random lottery to select beneficiaries from these registrations. If selected, the employer can file an H-1B cap-subject petition on behalf of the beneficiary
- The new system will assign weights to applications based on the wage level offered by the employer. Higher wage levels, such as Level IV, will receive more entries in the selection pool compared to lower wage levels. This approach is intended to prioritize applications that offer higher salaries, reflecting the skill and economic contribution of the position.
- The weighting is based on the Occupational Employment and Wage Statistics (OEWS) wage level, which reflects the skill and pay level of the position
- Impact on smaller companies and startups:
- Smaller companies and startups, which may not be able to offer competitive salaries, could face challenges under this new system. The emphasis on higher wages might disadvantage these businesses in the selection process, potentially limiting their ability to hire international talent. This could lead to a concentration of H-1B visas among larger companies, impacting the diversity and innovation typically associated with startups.
- The proposed changes could encourage recent graduates to seek employment in industries or roles that offer higher wages, potentially influencing career choices and job market dynamics.
- Impact on bachelor’s degree holders:
- Recent graduates with a bachelor’s degree may face increased competition under the new weighted selection process. The emphasis on higher wages and skills could disadvantage these individuals, as they are typically offered lower starting salaries compared to those with advanced degrees or more experience.
- The proposed system may prioritize applications from employers offering higher wage levels, potentially reducing the chances for bachelor’s degree holders to secure an H-1B visa unless they are in high-demand fields or industries willing to offer competitive salaries.
- Effect on the overall number of H-1B visas issued:
- The proposed changes do not alter the overall cap of 85,000 H-1B visas issued annually. However, the distribution of these visas may shift towards higher-paid positions.
- The proposed changes would also give those with an advanced degree, like a master’s degree, and additional advantage for the general H-1B cap of 65,000
Potential Legal Challenges and Criticisms
Legal challenges could arise regarding the fairness and accessibility of the new system, particularly from smaller businesses or industries that rely on entry-level international talent. Critics may argue that the weighted system could exacerbate existing inequalities in the labor market by favoring larger corporations and higher-paying industries. Additionally, there may be concerns about increased administrative complexity and the need for updates to USCIS information technology systems.
Conclusion
The proposed weighted selection process for H-1B visas represents a significant shift in how these visas are allocated, with a focus on prioritizing higher-skilled and higher-paid workers. While this change aims to enhance the program’s effectiveness in supporting U.S. businesses and economic growth, it also poses challenges for smaller companies and raises potential legal and fairness concerns. This proposed regulation is a critical development in U.S. immigration policy, and its implications will be closely watched by businesses, legal experts, and policymakers alike.
As stated by the American Immigration Lawyers Association (AILA) in its recent Policy Brief, Policies Targeting Skilled Workers and Students Crush American Innovation and Harm our Economy, (October 2, 2025): “[r]ather than incentivizing foreign workers and their employers to invest their education, skills, and resources into the United States, the Administration’s policies are closing the door to economic growth and innovation in favor of the wealthy elite. International students, H-1B workers, and their employers will turn to other countries that recognize that their extraordinary ability and potential will bolster their global competitiveness, to the detriment of the U.S. economy and U.S. workers.”
If you are a foreign national or U.S. Employer that will be impacted by this proposed rule, we encourage you to submit your public comment before the October 24, 2025 deadline.
For more questions on the H-1B Selection Process, H-1B Registration, or other immigration matters, please contact Kolko & Casey, P.C.
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.
