USCIS Proposes Salary-Based H-1B Lottery System that Would Favor Higher-Paid Workers
Key Development: On September 24, 2025, USCIS published a Proposed Rule that would fundamentally alter the H-1B lottery system by prioritizing candidates offered higher salaries.
What's Changing:
The new system would give applicants offered Level IV prevailing wages (highest salary level) four times better odds of selection compared to those at Level I (lowest salary level)
Selection odds would be tiered based on prevailing wage levels, creating a salary-based hierarchy
Impact Analysis:
Disadvantaged Groups: Junior-level workers and employees at companies where equity compensation is significant
Potential Fraud Concerns: Risk some sponsors manipulating the system by artificially inflating the salary
Legal Challenges Expected: The proposal will very likely face court challenges and possible injunctive relief.
Bottom Line: We anticipate this new process will NOT be implemented in time for the FY2027 H-1B cap lottery due to expected legal challenges and implementation timeline.
Details on Proposed Rule
On September 24, 2025, United States Citizenship and Immigration Services (USCIS) published a Proposed Rule that would fundamentally restructure the H-1B lottery selection process by prioritizing applicants offered higher salaries.
Under the proposed changes, H-1B petitions would be selected based on prevailing wage levels, with those offered the highest salaries (Level IV prevailing wage) receiving four times better odds of selection than those at the lowest salary level (Level I). The system would create a tiered selection process where higher compensation directly correlates to improved lottery odds.
The proposal would significantly disadvantage workers in junior positions and employees at companies where equity compensation represents a substantial portion of total compensation, as prevailing wage determinations typically focus on base salary rather than total compensation packages. This raises concerns about the potential for fraud by artificially inflating offered salaries to improve lottery odds. Additionally, the rule change is expected to face substantial legal challenges and possible injunctive relief that could delay or prevent implementation.
Based on the anticipated litigation timeline and the regulatory implementation process, we believe it is unlikely that the new salary-based selection process will be in effect for next year's FY2027 H-1B cap lottery.
We will continue to monitor developments and provide updates as more information becomes available.