The H-1B lottery is no longer a game of pure chance. Starting February 27, 2026, the Department of Homeland Security will implement a wage-weighted random selection process for cap-subject H-1B registrations that prioritizes higher-wage positions. Based on historical data referenced by DHS in the final rule, Level IV wage positions may have approximately 61% selection probability, while Level I positions drop to just 15% - compared to the prior equal-chance selection model (with selection rates varying by year depending on volume but averaging ~29.59% based on historical data. For employers and foreign nationals seeking H-1B specialty occupation visas, understanding this change is critical for strategic planning in the FY 2027 cap season and beyond.
The H-1B program allocates 85,000 visas annually (65,000 regular cap plus 20,000 for U.S. advanced degree holders) for specialty occupation workers. Since demand far exceeds supply, USCIS has historically used a random lottery to select eligible registrations.
The weighted selection rule fundamentally changes this approach by tying selection probability to prevailing wage levels established by the Department of Labor.
The DOL's prevailing wage system divides wages into four tiers based on Occupational Employment and Wage Statistics (OEWS) data:
Despite 2020 and 2021 proposed increases that would have raised these thresholds significantly, those rules were stalled in court and eventually withdrawn in December 2021. The current operational percentiles remain unchanged.
The DHS final rule, published in the Federal Register on December 29, 2025, implements a weighted system where registrations are entered into the selection pool multiple times based on wage level:
Each unique beneficiary still counts only once toward the 85,000 cap - the weighting affects probability, not allocation. As USCIS explained, this system "better serves Congress' intent for the H-1B program" by incentivizing employers to petition for "higher-paid, higher-skilled foreign workers."
The rule becomes effective February 27, 2026 - precisely in time for FY 2027 cap registration expected to begin in March 2026. This timing means employers must adjust strategies immediately.
The probability shift is dramatic. Under the current random selection model, registrants have equal odds of selection in the lottery draw, though master's cap–eligible registrants effectively get an extra bite at the apple, because they can be considered in both the master's cap and the regular cap lotteries.
The weighted system creates stark differences.
Historical petition data from FY 2020-2024 shows H-1B cap petitions concentrated at lower levels: 28% at Level I, 55% at Level II, 12% at Level III, and only 5% at Level IV. This distribution means the majority of current H-1B participants face significantly reduced selection odds unless employers increase wage offers.
DHS projects the annual distribution of 85,000 visas will shift substantially:
For STEM professionals and other high-skilled workers, the rule's impact depends entirely on how their salary maps to OEWS wage levels for their specific occupation and location. A software engineer earning $150,000 in San Francisco may correspond to Level II, while the same salary in Austin might correspond to Level III or IV.
Understanding how prevailing wages work is essential for optimizing selection probability under the new system. The DOL's wage determination process establishes the minimum salary employers must pay H-1B workers based on job duties, location, and experience requirements.
Employers can determine prevailing wages through several methods:
For most H-1B employers, the OFLC Wage Search tool provides immediate access to wage levels by Standard Occupational Classification (SOC) code and metropolitan statistical area.
A critical distinction exists between the OEWS wage level selected for registration and the level used on the Labor Condition Application:
This means a highly-paid entry-level worker could be registered at Level III or IV based on salary, even though the LCA shows Level I based on position requirements. It's important to understand that wage levels reflect relative seniority and job complexity within a specific occupation and location, not simply how much the worker is paid.
Several factors can complicate wage level determination:
For employers seeking guidance on H-1B requirements, working with experienced immigration counsel can help ensure accurate wage level classification and optimal positioning.
With selection probability now directly tied to wage levels, employers may want to approach H-1B sponsorship more strategically. The H-1B lottery is no longer a purely random process - the chances of selection now vary based on the wage level offered for the position.
Job descriptions and SOC code selection can significantly impact wage level classification. Employers may want to consider:
The financial decision to increase wages for H-1B positions may require analysis:
Selection probability gain: Moving from Level II to Level III increases odds by approximately 15 percentage points (from 31% to 46%)
Cost analysis factors to consider:
Employers considering wage adjustments for foreign national employees may want to consult with both immigration counsel and employment counsel to understand any implications for pay equity and internal compensation structures.
For businesses managing multiple foreign national employees, the weighted selection rule may warrant systematic planning. Areas to consider include:
Once selected in the lottery, employers must file a complete H-1B petition with documentation consistent with the registration. The final rule outlines the critical consistency requirements.
The post-selection timeline is structured:
A complete H-1B petition includes:
USCIS processing times vary based on service center workload and case complexity. Regular processing can take several months, while premium processing offers expedited adjudication for an additional fee. If USCIS issues a Request for Evidence (RFE), petitioners typically have a limited time to respond.
For employers needing guaranteed turnaround times, Alma's H-1B services include fast document preparation with a 2-week turnaround guarantee and comprehensive RFE response support.
The new rule imposes strict consistency requirements between registration and petition to prevent gaming. USCIS may deny or revoke petitions based on perceived manipulation.
Employer obligations continue throughout the H-1B period:
DOL may conduct audits of H-1B employers. Generally, employers should be prepared to demonstrate:
The rule includes specific provisions to prevent manipulation:
For businesses seeking compliance support, Alma's platform includes built-in trackers, proactive alerts, and audit-ready records for HR and mobility teams.
Timing is critical for the FY 2027 H-1B cap season. The rule's February 27, 2026 effective date means all registrations submitted after that date will use the weighted selection system.
Expected FY 2027 Schedule (exact dates announced by USCIS): The registration period is expected to open in early March 2026 and close in late March 2026, with initial selection notification and start of petition filing window anticipated for late March/early April 2026, the petition filing window ending around late June 2026, and the employment start date set for October 1, 2026.
Before registration opens, employers should:
Startups and early-stage companies should begin preparation immediately to ensure adequate time for strategic wage positioning.
Common timing mistakes to avoid:
The complexity of the new wage-based system makes professional legal guidance more valuable than ever. The rule introduces multiple new requirements that require careful attention to detail.
The weighted selection rule creates new strategic considerations:
Alma combines attorney expertise with technology to deliver responsive, accurate immigration legal services. Alma provides:
Every H-1B situation has unique considerations. Recent graduates face different challenges than experienced professionals. Multi-location employers need different strategies than single-office companies. Entrepreneurs and founders require specialized approaches.
Alma's attorney-led, tech-enabled platform provides personalized immigration support tailored to individual circumstances - whether you're an individual seeking your first H-1B or a company managing hundreds of foreign national employees.
Disclaimer: This blog is for informational purposes only and does not provide legal advice. Reading it does not create an attorney-client relationship. For advice about your situation, consult a qualified immigration attorney.
Yes. The final rule applies to all cap-subject registrations submitted on or after February 27, 2026, including both the regular 65,000 cap and the 20,000 advanced degree exemption. Cap-exempt petitions (universities, nonprofit research organizations, government research organizations) are not affected because they do not go through the lottery. The weighted system will remain in effect for FY 2027 and all future fiscal years unless modified by subsequent rulemaking.
The weighted selection rule only applies to initial cap-subject registrations for the annual lottery. H-1B extensions, amendments, and change of employer petitions for workers already counted against the cap are not affected by the new weighting system. These petitions continue to be filed and adjudicated under existing procedures.
For registration purposes, you must select the highest OEWS wage level that the offered salary equals or exceeds. For example, if Level II for your occupation and location is $95,000 and Level III is $120,000, a salary offer of $110,000 would be registered at Level II (not Level III). Only when the salary reaches or exceeds the Level III threshold can you select Level III for registration weighting purposes. This makes understanding exact wage thresholds for specific SOC codes and locations critical for strategic planning.
No. USCIS has implemented strict consistency requirements preventing post-selection changes. The petition must contain the same wage level, SOC code, and area of intended employment as the registration. If USCIS determines that changes were made to unfairly increase selection odds - such as registering at a higher wage level and then reducing the actual wage - the petition may be denied or revoked. This anti-gaming provision means employers must commit to the registered wage level from the outset.
International students using Optional Practical Training while seeking H-1B sponsorship face mixed impacts. Those with in-demand skills commanding premium salaries (AI/ML, semiconductor engineering, data science) may actually benefit from the weighted system, as their compensation often corresponds to Level III or IV. However, students entering entry-level positions at Level I wages will see selection probability drop from approximately 30% to 15%. Students currently on OPT should discuss wage positioning with prospective employers early in the sponsorship conversation.
When a beneficiary works at multiple locations, the final rule requires selecting the lowest corresponding wage level among all work locations for registration weighting purposes. This anti-gaming provision prevents employers from claiming a high-cost location for registration while actually employing the worker primarily in a lower-cost area. For remote or hybrid workers, employers must carefully document actual work locations and apply the appropriate geographic wage data.
