H-1B Weighted Lottery FAQs
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USCIS has published a final rule that changes the H-1B cap lottery from a purely random selection process to a weighted system based on salary levels. This new system is scheduled to take effect for the FY2027 cap lottery season.
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Under the new system, registrations will receive multiple "shots" in the lottery based on the prevailing wage level of the offered position. A position at prevailing wage Level IV (highest paid) will receive four shots in the lottery, while a Level I position (entry level) will receive only one shot.
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The prevailing wage level is determined by three factors: the Department of Labor's occupational category (SOC code), the area of intended employment, and the offered salary. Employers will need to indicate these on the registration application along with the highest prevailing wage level that the foreign national's salary would meet.
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The rule is slated to take effect for the FY2027 cap lottery season, which typically requires registration in March 2026 for positions starting in October 2026.
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No. The rule will likely face legal challenges and may be enjoined by a Federal Court before the lottery selection process starts.
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If multiple registrations are submitted for the same individual, the registration indicating the lowest prevailing wage level will be used to determine the number of lottery shots that person receives.
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Employees who are sponsored by companies that pay higher salaries would have a significant advantage under this system.
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Legality: The statute requires a "random" selection process, and this weighted approach may be inconsistent with the law, making it vulnerable to legal challenges.
Fraud potential: The rule lacks clear mechanisms to prevent unscrupulous employers from artificially inflating salaries to improve lottery odds, then switching employees to lower-paid positions after approval.
Economic impact: The rule could make it difficult for many U.S. employers to sponsor new graduates, potentially pushing high-tech positions offshore.
Fairness to U.S. workers: Employers might pay foreign workers more than similarly situated U.S. workers solely to improve H-1B lottery chances, which could lead to discrimination claims.
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We recommend that employers continue with their existing plans to submit workers in the FY2027 lottery, even if the salary yields only a small chance of selection. There is a significant possibility that the rule will be enjoined or withdrawn before implementation.
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The annual H-1B cap is set by Congress at 65,000, with an additional 20,000 available for graduates with U.S. advanced degrees, for a total of 85,000 new H-1Bs per fiscal year.
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Under the current process, U.S. employers register prospective H-1B workers in March. Selected registrations can file H-1B petitions during a 3-month period starting in April, six months before the new fiscal year begins in October.