DHS Crafting Rule for Weighted Selection of H-1B Petitions (1)

A new Department of Homeland Security rule would add weighted selection of petitions for H-1B specialty occupation workers.

The proposed rule (RIN 1615-AD01) was sent to the White House Office of Information and Regulatory Affairs for review Thursday.

The H-1B visa program is heavily used by the tech sector to hire foreign talent and is limited to 85,000 slots each year under a statutory cap, including 20,000 reserved for workers with at least a master’s degree. Universities and research institutions are eligible for cap-exempt visas.

After a random lottery each year for visas subject to the cap, employers with winning entries are eligible to submit petitions to sponsor workers. US Citizenship and Immigration Services announced Friday that enough petitions had been submitted to reach the annual cap, meaning an additional lottery wouldn’t be required for fiscal year 2026.

During President Donald Trump’s first term, DHS issued a rule to base selection of H-1B petitions on the wage offered for a position, rather than its current random process, arguing it would incentivize employers to hire more highly-skilled workers. The proposed rule would have prioritized selection based on corresponding wage levels divided into four tiers.

That rule, one of several offered as part of a “Buy American, Hire American” initiative, was later shelved by the Biden administration in 2021. The draft regulations drew more than 1,000 public comments, including many that argued it would drastically reduce the number of available H-1B workers.

Federal courts had blocked regulations to raise H-1B prevailing wage floors and narrow the range of positions that qualify.