Since the release of the H-1B proclamation “Restriction on Entry of Certain Nonimmigrant Workers,” the legal community has thoroughly analyzed reforms aimed at developing a wage-based H-1B lottery system.
According to legal experts, the wage-prioritized system is expected to be officially published and implemented, which will fundamentally change the H-1B landscape.
Please note: This article is for informational purposes only and does not constitute legal advice. The situation surrounding H-1B regulations is complex and can change rapidly. We strongly recommend consulting with a qualified immigration attorney for guidance on your specific circumstances.
The proposed new rule would overhaul the current H-1B lottery. Instead of a random selection, the system would prioritize registrations based on the offered salary, using the Department of Labor’s Occupational Employment Statistics (OES) wage levels.
The breakdown being discussed is straightforward: the higher the wage level, the more entries a candidate receives in the lottery. For instance:
- A Level I wage might receive one entry.
- A Level IV wage could receive four entries.
How Will It Impact Chances of Selection?
Immigration policy analysts have projected a dramatic shift in selection probabilities based on wage levels:
- Level 1 Wage: A potential 48% decrease in selection probability.
- Level 2 Wage: A slight 3% increase in selection probability.
- Level 3 Wage: A significant 55% increase in selection probability.
- Level 4 Wage: A massive 107% increase in selection probability.
The consensus is that this new framework will create hurdles for recent graduates, who typically enter the workforce at lower wage levels. Similarly, small companies may find it more challenging to compete for talent through the H-1B program. This is particularly so if the lawsuit challenging the 100k visa fee does not succeed.
Stricter Registration Requirements Likely
Under the DHS proposal for a wage-based H-1B selection process, the registration phase is expected to require more substantive employment data to strengthen integrity and prioritize higher-paid roles. If adopted as drafted, registrants may be required to provide:
- The OES prevailing wage level that the proffered wage equals or exceeds
- The SOC job code for the position
- The geographic area(s) of employment, since prevailing wages differ by location
- Clarification when there are salary ranges or multiple worksites, so that the registration reflects a wage level consistent with how the proffered wage is classified
Importantly, the registration information must generally align with the LCA and the later petition. Under the proposal, USCIS may accept only limited changes after registration (for bona fide reasons).
Material discrepancies between the registration and petition (in wage, location, or job details) may lead to denials or revocations, though the precise enforcement standard would depend on the final rule.
While this proposal sets a clear directional shift, it remains subject to change during the public comment period and subsequent rulemaking.
How VisaNation Can Help
This is a rapidly evolving situation, and while legal experts predict these changes will take place, the final rules and their implementation are still developing.
Strategic approaches can be developed to account for these new rules, but there is no one-size-fits-all solution. Every applicant and employer situation is unique and must be evaluated on a case-by-case basis.
Given the complexities and the high stakes, it is more important than ever to seek professional guidance. Consulting with an experienced immigration attorney will be crucial to understanding your specific options and to building the strongest possible case under this new framework.
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