DHS Final Rule on Weighted H-1B Cap Selection Now Under OMB Review

The federal Office of Management and Budget (OMB) is now reviewing the final rule that would modify the selection process in the H-1B cap lottery so that registrants for the lottery would be entered into the selection pool using a weighted system to give greater odds of selection to beneficiaries with the highest wages according to the Department of Labor’s four-level prevailing wage system.

In September, the United States Citizenship and Immigration Services (USCIS) issued a proposed rule  to revise the annual H-1B cap lottery process in order to give an advantage in the selection process to those with the highest wage for their occupation and area of employment corresponding to the Department of Labor’s Occupational Employment and Wage Statistics (OEWS). Under the proposed rule, beneficiaries with the highest offered wage level for their occupation and area of employment would be entered in the selection pool four times, to correspond with the highest tier of the Department of Labor’s wage structure, Level 4. A Level 3 beneficiary would be entered three times; a Level 2 beneficiary, two times; and a Level 1 beneficiary, once.

Following notice and comment, USCIS has now finalized the rule and submitted it to OMB for review. The contents of the final rule will remain confidential until it is released for publication. OMB is likely to undertake expeditious review, and an advance copy of the final rule may be available in the coming days.

If the rule clears OMB review, it would be published in the Federal Register with an implementation date. Though the timing of the regulation is not yet known, an implementation date of 30 days after publication is possible. The relatively quick finalization and submission of the rule to OMB makes it possible for the rule to take effect in time for the FY 2027 cap season set to begin in March 2026, although legal challenges to the rule are possible.