A Guide to the Proposed Salary-Based Selection System
The process for selecting H-1B visa candidates may be on the verge of a significant transformation. A new rule is currently under review that could end the random lottery system that has been in place for years. For the tens of thousands of professionals who apply each year, understanding this potential shift is critical.
This blog breaks down what we know about the proposed changes, how they might differ from past proposals, and what this could mean for you as a current or prospective H-1B visa holder.
What is the Proposed Change to H-1B Selection?
Currently, when the number of H-1B registrations exceeds the annual limit of 85,000 (65,000 for the regular cap and 20,000 for the US advanced degree exemption), US Citizenship and Immigration Services (USCIS) uses a computer-generated random lottery to select who can file a petition.
A new rule, titled “Weighted Selection Process for Registrants and Petitioners Seeking To File Cap-Subject H-1B Petitions,” is being reviewed by the Office of Management and Budget (OMB). While the exact details are not yet public, the title and previous government proposals suggest a move away from the lottery toward a system that prioritizes petitions based on the offered salary.
This idea is not entirely new. In January 2021, a similar rule was finalized that aimed to rank and select H-1B petitions based on salary, but it was never implemented. That rule proposed selecting candidates based on the highest corresponding wage level for their specific job and location.
Understanding Wage Levels
To understand a salary-based system, it’s important to know about the Occupational Employment and Wage Statistics (OEWS) wage levels, which are determined by the Department of Labor (DOL). When an employer files a Labor Condition Application (LCA) for an H-1B worker, they must specify a wage that meets or exceeds the prevailing wage for that role, which falls into one of four levels:
- Level I: Entry-level positions for workers who are new to the field.
- Level II: Positions for qualified employees who have gained experience.
- Level III: Positions for experienced employees with a strong understanding of their duties.
- Level IV: Positions for fully competent experts in their field, often in senior or lead roles.
A system that prioritizes higher wage levels would inherently favor applicants in more senior, higher-paid positions (Level III and IV) over those in early-career roles (Level I and II).
“Weighted Selection” vs. Highest-Salary-First: What’s the Difference?
The title of the new rule, “Weighted Selection,” suggests a potentially different approach than the all-or-nothing system proposed in 2021. Here are two possible scenarios:
- Highest-Salary-First Ranking: This would be similar to the 2021 proposal. USCIS would rank all registrations by wage level, from IV down to I. It would select all Level IV applicants, then all Level III, and so on, until the 85,000 cap is reached. In a year with high demand from senior professionals, this could mean that applicants at Level I or II would have little to no chance of being selected.
- Weighted Lottery: This system would still involve a lottery, but it would not be purely random. Instead, applicants would be given more “chances” or “weight” based on their salary or wage level. For example, a Level IV applicant might get four entries in the lottery, a Level III gets three, and so on. In this scenario, everyone would have a chance of being selected, but the probability would be much higher for those with higher proffered wages.
The final details will only be known when the proposed rule is officially published.
Who Would Be Most Affected by This Change?
A shift to a salary-based selection would have a significant impact on certain groups of applicants.
- Recent Graduates and Early-Career Professionals: Individuals on F-1 visas (including those on OPT or STEM OPT) and J-1 visas who are just starting their careers are typically paid at Level I or Level II wage levels. A 2021 analysis by the National Foundation for American Policy (NFAP) found that under a salary-ranking system, an international student’s chance of selection could be significantly lower compared to the current lottery.
- Workers in Certain Essential Fields: Not all high-skilled jobs come with six-figure salaries, especially in the early stages. Occupations in education, scientific research, and some healthcare roles often have lower starting salaries. For example, a significant percentage of teachers, microbiologists, physicists, and medical scientists are hired at Level I or II wages. A salary-based system could make it much harder for employers in these sectors to hire foreign talent.
- High-Income Earners: Conversely, professionals in highly compensated fields like specialized technology, finance, or senior management would likely see their chances of selection increase substantially.
Broader Questions and Criticisms
This potential policy change raises several important questions that have been part of the H-1B debate for years.
- Is it Lawful? Critics of the 2021 proposal argued that the Immigration and Nationality Act (INA) requires visas to be issued “in the order in which petitions are filed.” A comment submitted by the American Immigration Lawyers Association (AILA) and other groups stated, “DHS believes, however, that prioritization of selection on other bases… would require statutory changes.” Whether USCIS has the authority to make this change without new legislation from Congress is a central legal question that will likely be challenged in court.
- Does it Solve the Core Issue? Many employers and immigration experts argue that the primary challenge with the H-1B program is not the selection method, but the insufficient annual cap. With registrations often exceeding 400,000 for only 85,000 available slots, the vast majority of applicants are rejected regardless of the system. This proposed rule does not increase the number of available H-1B visas.
- Impact on US Competitiveness: Most developed countries compete to attract young, talented graduates from their universities. Critics suggest that a system prioritizing older, more established professionals could put the US at a disadvantage in retaining the “best and brightest” international students graduating from American universities.
What Happens Next and How Can You Prepare?
- OMB Review: The rule is currently being reviewed by the OMB. This process can take weeks or months.
- Public Comment Period: Once cleared, the proposed rule will be published in the Federal Register. This will open a public comment period, typically for 30 or 60 days, where individuals and organizations can submit feedback.
- Final Rule: After reviewing comments, the administration may publish a final rule.
- Implementation: If the rule is finalized and survives any legal challenges, it could potentially be in place for the FY 2027 H-1B cap season, which begins with the registration period in March 2026.
For now, the H-1B lottery system remains in place. However, it is wise to stay informed. Discuss these potential changes with your employer or immigration attorney to understand how your specific profile—including your occupation and experience level—might be affected under a salary-based system.
