Trump Administration Proposes to Weight H-1B Lottery Entries Based on Offered Salary

Takeaways

• Employers offering higher wages would see increased chances of selection, while entry-level roles would face reduced odds.
• Lottery entries would be tiered from one to four based on wage levels, with Level IV positions entered four times compared to one entry for Level I.
• The proposal reflects DHS’s goal of prioritizing higher-skilled, higher-paid foreign nationals in the H-1B process.

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The Trump Administration has published its long-anticipated proposed federal regulation that, if adopted, would require the U.S. Citizenship and Immigration Services (USCIS) to implement a selection process that would favor those entries for higher-skilled and higher-paid foreign nationals while conducting its annual H-1B lottery.

The proposed rule would “weight lottery registrations based on each beneficiary’s wage levels based on the highest Occupational Employment and Wage Statistics (OEWS) wage level that the beneficiary’s proffered wage would equal or exceed for the relevant Standard Occupational Classification (SOC) code in the area(s) of intended employment.”

As background, the H-1B visa program requires employers to pay these workers based on prevailing wage levels for specific occupations determined by the U.S. Department of Labor (DOL). The DOL breaks these down into four levels based on the position’s required education, experience, and other qualifications, and based on the geographic location of the intended worksite. Level I, with the lowest wage levels, is considered entry-level while Level IV, with the highest, is considered to fully competent. The proposed rule indicates the Department of Homeland Security’s (DHS) goal is to incentivize employers to offer higher wages and/or petition for positions requiring higher skills and higher-skilled foreign nationals, stating:

Put simply, because demand for H-1B visas has exceeded the annual supply for more than a decade, DHS prefers that simultaneously submitted registrations for cap-subject H-1B visas be selected in a manner that favors beneficiaries earning the highest wages relative to their SOC codes and area(s) of intended employment.

Under this selection process, each registration would be assigned to the relevant wage level and entered into the selection pool as follows:

Those With:	Number of Entries in Selection Pool
Level IV wage levels	4
Level III wage levels	3
Level II wage levels	2
Level I wage levels	1

This rule, if enacted, would significantly reduce, but not eliminate, the chances of a registration for an entry-level position to be selected in the lottery.

Final note—while this proposed rule would normally have a significant effect on the upcoming H-1B lottery, it is very possible it could all end up being a moot point in light of the recent announcement, a few days ago, of an additional $100,000 fee for H-1B applications filed as a result of being selected in the March 2026 lottery. Assuming it withstands legal challenges, it is difficult to imagine many U.S. employers pursuing H-1B applications knowing such an expensive surcharge is required in addition to legal and filing fees.

If you have any questions about the information in this alert, please contact Jim Aldrich or your Dykema relationship attorney.