The Trump administration has unveiled a proposed immigration regulation that would fundamentally alter the way H-1B visas are allocated. The Department of Homeland Security (DHS) intends to weigh the lottery based on salary levels tied to the Department of Labor’s (DOL) four-tier wage system.
In practice, this means that an H-1B candidate with a Level IV wage offer (the highest tier) would be entered into the lottery four times, while a Level III beneficiary would be entered three times, a Level II beneficiary twice, and a Level I beneficiary only once. This “weighted lottery” approach would give higher odds of selection to those offered the highest wages.
The proposal comes alongside a presidential proclamation imposing a $100,000 fee on H-1B petitions filed after Sept 21, 2025, signalling a broader attempt to reshape the H-1B visa landscape. Currently, this proposed regulation is open for public comments. Finalization could come in time for the upcoming lottery in spring-2026 (for the fiscal ending Sept 30, 2027).
How the proposed rule would pan out...
There is an annual quota of 85,000 for H-1B cap applications. As demand significantly exceeds supply, post E-registration of the beneficiaries (who are sponsored for the H-1B visa) a random lottery is conducted. The sponsoring employers then file a detailed H-1B application for those who were successfully selected in the lottery.
Under the current system, all beneficiaries entered in the lottery face equal odds of selection of about 29.59%. Under the proposed rule, however, odds diverge sharply by wage level..
Table 1: H-1B Lottery Selection Probability (USCIS Data)
The implications are stark: the probability of selection doubles for Level IV applicants, while it is cut nearly in half for Level I entrants. The National Foundation for American Policy (NFAP) discovered an error in USCISs’ calculations which resulted in the agency understating the negative impact of the new system on individuals at Level I and the benefit the proposed rule provides to individuals at Level III and Level IV.. After correcting the USCIS error, NFAP found that, compared to the current system, individuals at Level I would receive 11,518 fewer H-1B selections, while people at Level IV would gain 4,426 more, Level III would receive 5,528 more H-1B selections and Level II would get an additional 1,564.
Table 2: Change in Probability of H-1B Lottery Selection
According to NFAP, under the proposed rule, the probability of USCIS selecting an individual at Level IV for an H-1B petition would increase by 107% but fall by 48% for individuals at Level I. The probability of USCIS selecting an H-1B petition would increase by 55% for individuals at Level III and by 3% for individuals at Level II.
Effectively, the rule would tilt opportunities heavily toward mid-career professionals or those in senior roles, while disadvantaging entry-level professionals, including the bulk of recent international graduates from US universities.
Questioning the logic of the proposed rule
Stuart Anderson, Executive Director, NFAP, has been one of the most vocal critics. He argues that the Department of Labor’s prevailing wage framework was never designed to measure skill levels, but merely to categorize positions based on experience and job requirements. Using it to determine H-1B lottery outcomes, he says, is “a bad fit” for immigration policy.
NFAP’s detailed analysis highlights the flawed assumptions embedded in the rule. “Without supporting evidence, the proposed rule establishes a policy that an H-1B visa holder paid a Level IV salary is four times more valuable to employers and the US economy than someone paid a Level I salary,” the think tank concluded.
Critics emphasize that the rule represents a departure from America’s traditional strategy of attracting and nurturing talent at its earliest stages. International students—who make up 73% of graduate students in electrical and computer engineering at U. universities—would be among the hardest hit.
Anderson points out the irony: Donald Trump himself had stated in 2024 that international students should stay and work in the US after graduation. Yet, this rule would move policy in the opposite direction, favouring mid-career hires over fresh graduates in fields like artificial intelligence, where early-stage innovation is critical.
The result, analysts warn, is a system where hiring senior foreign managers becomes easier than hiring recent STEM graduates—the very individuals who could contribute most to America's long-term competitiveness.
The proposed rule is unlawful
Doug Rand, a former Department of Homeland Security (DHS) official and long-time immigration reform advocate, has gone further, labelling the proposal flatly unlawful.
He argues that the Immigration and Nationality Act of 1990 is explicit: H-1Bs “shall be issued… in the order in which petitions are filed.” Because oversubscription made first-come-first-served impractical, DHS reasonably shifted to a random lottery. But inserting wage-based criteria, Rand insists, goes beyond the agency’s legal authority.
Rand warns that the losers of this system will be “the hundreds of thousands of recently graduated international students from US universities—the very ‘best and brightest’ that even Trump claimed to embrace.” The winners, he suggests, will be less scrupulous firms willing to inflate wage offers to game the system.
The proposed rule is almost certain to face court challenges if finalized. A similar attempt in 2021 was blocked, with immigration lawyers and industry groups arguing it violated statutory requirements.
In practice, this means that an H-1B candidate with a Level IV wage offer (the highest tier) would be entered into the lottery four times, while a Level III beneficiary would be entered three times, a Level II beneficiary twice, and a Level I beneficiary only once. This “weighted lottery” approach would give higher odds of selection to those offered the highest wages.
The proposal comes alongside a presidential proclamation imposing a $100,000 fee on H-1B petitions filed after Sept 21, 2025, signalling a broader attempt to reshape the H-1B visa landscape. Currently, this proposed regulation is open for public comments. Finalization could come in time for the upcoming lottery in spring-2026 (for the fiscal ending Sept 30, 2027).
How the proposed rule would pan out...
There is an annual quota of 85,000 for H-1B cap applications. As demand significantly exceeds supply, post E-registration of the beneficiaries (who are sponsored for the H-1B visa) a random lottery is conducted. The sponsoring employers then file a detailed H-1B application for those who were successfully selected in the lottery.
Under the current system, all beneficiaries entered in the lottery face equal odds of selection of about 29.59%. Under the proposed rule, however, odds diverge sharply by wage level..
Table 1: H-1B Lottery Selection Probability (USCIS Data)
The implications are stark: the probability of selection doubles for Level IV applicants, while it is cut nearly in half for Level I entrants. The National Foundation for American Policy (NFAP) discovered an error in USCISs’ calculations which resulted in the agency understating the negative impact of the new system on individuals at Level I and the benefit the proposed rule provides to individuals at Level III and Level IV.. After correcting the USCIS error, NFAP found that, compared to the current system, individuals at Level I would receive 11,518 fewer H-1B selections, while people at Level IV would gain 4,426 more, Level III would receive 5,528 more H-1B selections and Level II would get an additional 1,564.
Table 2: Change in Probability of H-1B Lottery Selection
According to NFAP, under the proposed rule, the probability of USCIS selecting an individual at Level IV for an H-1B petition would increase by 107% but fall by 48% for individuals at Level I. The probability of USCIS selecting an H-1B petition would increase by 55% for individuals at Level III and by 3% for individuals at Level II.
Effectively, the rule would tilt opportunities heavily toward mid-career professionals or those in senior roles, while disadvantaging entry-level professionals, including the bulk of recent international graduates from US universities.
Questioning the logic of the proposed rule
Stuart Anderson, Executive Director, NFAP, has been one of the most vocal critics. He argues that the Department of Labor’s prevailing wage framework was never designed to measure skill levels, but merely to categorize positions based on experience and job requirements. Using it to determine H-1B lottery outcomes, he says, is “a bad fit” for immigration policy.
NFAP’s detailed analysis highlights the flawed assumptions embedded in the rule. “Without supporting evidence, the proposed rule establishes a policy that an H-1B visa holder paid a Level IV salary is four times more valuable to employers and the US economy than someone paid a Level I salary,” the think tank concluded.
Critics emphasize that the rule represents a departure from America’s traditional strategy of attracting and nurturing talent at its earliest stages. International students—who make up 73% of graduate students in electrical and computer engineering at U. universities—would be among the hardest hit.
Anderson points out the irony: Donald Trump himself had stated in 2024 that international students should stay and work in the US after graduation. Yet, this rule would move policy in the opposite direction, favouring mid-career hires over fresh graduates in fields like artificial intelligence, where early-stage innovation is critical.
The result, analysts warn, is a system where hiring senior foreign managers becomes easier than hiring recent STEM graduates—the very individuals who could contribute most to America's long-term competitiveness.
The proposed rule is unlawful
Doug Rand, a former Department of Homeland Security (DHS) official and long-time immigration reform advocate, has gone further, labelling the proposal flatly unlawful.
He argues that the Immigration and Nationality Act of 1990 is explicit: H-1Bs “shall be issued… in the order in which petitions are filed.” Because oversubscription made first-come-first-served impractical, DHS reasonably shifted to a random lottery. But inserting wage-based criteria, Rand insists, goes beyond the agency’s legal authority.
Rand warns that the losers of this system will be “the hundreds of thousands of recently graduated international students from US universities—the very ‘best and brightest’ that even Trump claimed to embrace.” The winners, he suggests, will be less scrupulous firms willing to inflate wage offers to game the system.
The proposed rule is almost certain to face court challenges if finalized. A similar attempt in 2021 was blocked, with immigration lawyers and industry groups arguing it violated statutory requirements.
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