Proposal to Change the H-1B Lottery Process Using Wage-Based System

The Department of Homeland Security (DHS) proposes to revise the H‑1B registration/lottery system.  The system being proposed would replace the current purely random selection system with a weighted selection system that gives greater chances to beneficiaries tied to higher wages positions.

Key Proposed Changes:

1. Weighting by Wage Level

• Each registration would be assigned to a wage level (level 1 through 4) based on the proffered wage relative to the Occupational Employment and Wage Statistics survey for the relevant Standard Occupational Classification in the geographic area

• Registrations would be entered into the selection pool multiple times depending on wage level:
  • Level 4 prevailing wage → 4 entries
  • Level 3 prevailing wage → 3 entries
  • Level 2 prevailing wage → 2 entries
  • Level 1 prevailing wage → 1 entry

     2. Continuity with “beneficiary‑centric” selection rule

• Each registration would be assigned to a wage level (level 1 through 4) based on the proffered wage relative to the Occupational Employment and Wage Statistics survey for the relevant Standard Occupational Classification in the geographic area

Practical Impact:

1. New graduates (e.g., F-1 status holders) who only qualify for entry-level positions at entry-level wages will have lower odds of being selected in the H-1B lottery.
2. Seasoned employees who hold senior-level positions (perhaps those already employed in L-1, TN, O-1 status) will have higher odds of being selected.
3. Job site differences may give two positions that are the same, and offer the same pay, different odds of being selected. For example, the same salary that meets level 2 prevailing wage in Santa Clara County may meet level 3 or even level 4 prevailing wage in Solano County.
4. The new system incentives reducing non-guaranteed pay (bonus, stock grants, etc.) and increasing the base salary to meet a higher level of prevailing wage.

This proposal has not been adopted, but stakeholders are invited to comment on all aspects of the proposed rule within a 30-day public comment period.

ILG will continue to monitor the situation. If you have any questions, please feel free to contact your ILG attorney or reach our firm at .