Rishi P. Oza
By Rishi P. Oza
On December 23, 2025, the Trump Administration announced the codification of its sweeping changes to the H-1B CAP lottery selection process. Initially outlined as a potential policy change in late September 2025, the update to the Federal Register amounts to a titanic shift in the way in which potential H-1B applicants will be selected in the FY 2027 H-1B CAP lottery.
The issuance of the H-1B visa, the standard work visa for professionals in the United States, is regulated by a lottery system, which has been in place for almost two decades. Congress has capped the number of newly available H-1B visas at 85,000 annually, with 20,000 reserved for individuals graduating from U.S. colleges or universities with a master’s degree or higher and the remaining 65,000 available to everyone else worldwide.
The visa is reserved for only those individuals that will be assuming a “specialty occupation” commonly considered a job position that requires a bachelor’s degree as a minimum requirement for qualification. Because the demand for H-1Bs has exceeded the number available visas, USCIS has to date instituted a lottery system with each potential applicant receiving a lottery number and having an equal chance at being selected when the lottery is conducted annually in April.
This new regulatory change, which will go into effect prior to the onset of the 2027 lottery season this coming April, will give a higher priority or weight to individuals that are higher paid and more highly skilled. When applying for the H-1B visa, an employer is required to classify a worker as a Level I, II, III or IV worker, with each level considered as follows:
Level I (Entry-Level)
Level II (Junior-Level)
Level III (Mid-Level)
Level IV (Senior-Level)
Tied to these classification levels are the necessary wages that need to be paid to a worker based upon their given level of expertise – obviously, Level I entry-level workers are paid at a lower rate compared to their Level IV counterparts.
The new regulatory changes will now give workers at each wage level weighted entries into the H-1B system. For example, a Level IV Software Developer will be entered into the H-1B lottery four times compared to a Level I Software Developer, who will only receive one entry. As such, the selection process will generally favor the allocation of CAP-subject H-1B visas to higher-paid workers compared to their lower-paid counterparts. According to the press release issued by USCIS:
“The existing random selection process of H-1B registrations was exploited and abused by U.S. employers who were primarily seeking to import foreign workers at lower wages than they would pay American workers. The new weighted selection will [incentivize] American employers to petition for higher-paid, higher-skilled foreign workers.”
The impact of this change will invariably impact new workers entering the workforce, as college graduates are undeniably lower income earners compared to those more tenured in the particular field and will likely lead to new CAP-subject H-1B being skewed towards older and more established workers.
Much like many other policy changes sought by the Trump Administration, the new weighted selection process will likely be met with litigation seeking to block its implementation, as the impact of this change only 10 weeks before the start of the H-1B registration period gives employers little time to plan and employees even less in terms of prospective options on how to adapt.
The use of the weighted selection system is the second significant regulatory change to the issuance of H-1B visas. The former was the implementation of the $100,000 application fee to those employers seeking to obtain H-1B visas for workers that were not seeking to change status in the United States.
The $100,000 fee has only been applicable to a small fraction of applications, as most H-1B applications involve employees changing from one employer to another, a change that does not require the payment of the $100,000 fee.
The fee is only applicable to employers seeking to obtain H-1B visas for individuals not physically in the United States that would be looking to obtain a visa abroad.
The application of this fee has already faced significant court challenge brought by multiple states, as well as the U.S. Chamber of Commerce and Global Nurse Force asserting that the fee jump well-exceeded the President’s authority, failed to provide any public notice as is required under federal law and makes certain positions (i.e. nurses, researchers or scholars) almost entirely unfillable particularly for public and nonprofit agencies.
Most litigation efforts remain in their early stages without any decisive court rulings to date.
Rishi P. Oza is Partner at Brown Immigration Law, a firm that focuses solely on immigration law; he practices in Durham. roza@rbrownllc.com.
