By Cyrus D. Mehta and Kaitlyn Field*
On September 24, 2025, the Division of Homeland Safety (DHS) promulgated a brand new proposed rule to introduce a “weighted choice” system for H-1B cap-subject petitions. The brand new proposed system is geared toward favoring the “allocation of H-1B visas to increased expert and better paid aliens”.
Pursuant to the proposed rule, every H-1B lottery registration can be categorized based mostly on the Division of Labor (DOL)’s Occupational Employment and Wage Statistics (OEWS) wage ranges and entered into the lottery accordingly:
- Wage Degree IV entries can be added to the choice pool 4 instances
- Wage Degree III, thrice
- Wage Degree II, twice
- Wage Degree I, as soon as
The proposed rule makes clear that “every distinctive beneficiary would solely be counted as soon as towards the numerical allocation projections, no matter what number of registrations had been submitted for that beneficiary or what number of instances the beneficiary is entered within the choice pool.”
The system outlined within the proposed rule would have a devastating affect on U.S. employers and H-1B beneficiaries alike. Wage ranges for some industries are a lot increased than others, so U.S. employers who’re unable to pay a stage IV wage for a Software program Developer (SOC Code 15-1252), for instance, which exceeds $100,000 in lots of geographic areas, can have a decrease likelihood of candidates being chosen within the H-1B lottery. Candidates in fields that are usually lower-paying, resembling Acupuncturists (29-1291.00) can have a higher likelihood of being chosen, as employers could also be higher positioned to supply a Degree IV wage whether it is nonetheless comparatively modest. This measure can also be prone to deter U.S. employers from sponsoring new graduates for H-1B employment, as a stage I wage is commonly the one which applies to an entry-level place.
This proposed rule is one among plenty of measures geared toward eviscerating the H-1B visa program, along with the brand new $100,000 charge that applies to sure H-1B staff, detailed in our prior weblog. This charge can have the impact of pushing many H-1B staff out of the U.S. labor market. Industries like info expertise, which rely closely on H-1B staff as a result of there may be not sufficient U.S. expertise to fill open positions, will likely be impacted essentially the most severely.
These measures usually are not solely detrimental to the U.S. economic system and H-1B staff alike, however are additionally an extra instance of the Trump administration’s disregard for legal guidelines enacted by Congress, like his imposition of tariffs, firing of federal workers, together with Immigration Judges whose selections he doesn’t like and taking revenge on former authorities officers he doesn’t like, as with the indictment of James Comey. Trump has probably overstepped his authority as president by unilaterally imposing the brand new $100,000 charge, which is arbitrarily excessive and never licensed by the statute. Though Trump is proposing a rule to skew choices in favor of H-1B candidates who will likely be paid increased wages, there may be nothing within the INA that authorizes weighting H-1B choices based mostly on the quantity of the supplied wage.
CNN’s Fareed Zakaria cited the proclamation implementing the $100,000 charge as proof that the “America is shifting down the trail of intolerant democracy.” We agree.
*Kaitlyn Field is a Companion at Cyrus D. Mehta & Companions PLLC.
