Changes to H-1B Lottery Selection Process Proposed

Takeaways:

• The Trump Administration has proposed revising the H-1B lottery selection process to prioritize higher salaries and potentially education levels over the current random draw.
• Employers may face risks such as national origin discrimination claims and wage disputes if they raise salaries solely to improve selection chances but fail to follow through on payment.
• The proposal is under a 90-day OMB review and, if approved, could take effect for the FY2027 lottery in March 2026.

In a move that could significantly affect H-1B employers and those foreign nationals seeking these visas, the Trump Administration has reportedly proposed altering the way in which H-1B lottery entries are selected. The annual lottery is held each March, and the new proposal suggests using salary levels as a predominant factor in the selection process.

If adopted, employers will need to decide how best to approach this. Paying a foreign national a higher salary than U.S. workers in the same occupation only to increase their chances of selection could lead to national origin discrimination complaints and wage and hour issues if they don’t follow through on paying the increased compensation after selection and petition approval.

Currently, submissions are entered within specified dates every March (which have varied slightly from year to year) and are then selected in a blind draw with no criteria applied except that they be properly prepared. Unrelated to this new proposal, the entry fee for the lottery rose this year from $10 to $215.

Harkening back to a proposed change made just before President Trump left office in January 2021, this new/revived process was submitted to the Office of Management and Budget (OMB) on July 17, 2025, for a regular 90-day review period.

The January 2021, proposed rule, which was later pulled by the Biden Administration, would have required the Department of Homeland Security (DHS) to “rank and select” lottery entries based on the compensation offered for the position supporting the H-1B application with those with the higher salaries being selected first and those with lower salaries being selected (or not selected) after these are chosen.

While the actual proposed regulation has not yet been published, published reports have speculated that the proposed changes may also require consideration of the education levels of the foreign nationals who are entered in the lottery.

Begun in March 2020, for FY2021, the number of lottery entries first climbed significantly before sharply declining due to steps the USCIS took to eliminate duplicate/multiple entries for the same people.

The USCIS has published the following chart showing registration and selection numbers for fiscal years 2021-26 for the 85,000 annual H-1B “slots.”

Cap Fiscal Year	Total Registrations	Eligible Registrations*	Eligible Registrations for Beneficiaries with No Other Eligible Registrations	Eligible Registrations for Beneficiaries with Multiple Eligible Registrations	Selected Registrations
2021	274,237	269,424	241,299	28,125	124,415
2022	308,613	301,447	211,304	90,143	131,924
2023	483,927	474,421	309,241	165,180	127,600
2024	780,884	758,994	350,103	408,891	188,400
2025	479,953	470,342	423,028	47,314	135,137
2026	358,737	343,981	336,153	7,828	120,141

*The count of eligible registrations excludes duplicate registrations, those deleted by the prospective employer before the registration period closed, those denied for having invalid passport or travel document information, and those with failed payments.

Assuming it is cleared by the OMB, the proposed rule should be published in mid-September. Assuming further it is adopted, it would then be applied for the FY2027 lottery that will be held in March 2026.