As published in the Immigration Daily on August 21, 2025
On July 17, 2025, DHS submitted a proposed rule, “Weighted Selection Process for Registrants and Petitioners Seeking To File Cap‑Subject H‑1B Petitions” (RIN 1615‑AD01)—to the Office of Management and Budget (OMB) for review, OMB completed its review on August 8, 2025, and the rule has now moved back to USCIS. https://www.nafsa.org/regulatory-information/uscis-proposal-weighted-selection-h-1b-cap-subject-registrants-and?utm_source=chatgpt.com The next step is publishing the proposed rule in the Federal Register, triggering a formal public comment period. At this point of time early in the second Trump Administration, it is doubtful whether it can be halted if the Administration presses for its passage.
What will the proposed rule look like? We likely do not have to guess much as it will most probably mirror the proposed rule that was finalized in the last days of the first Trump Administration, but never enacted.
Three paragraphs from the summary, comments, and regulation sections of the earlier rule, “Modification of Registration Requirement for Petitioners Seeking to File Cap‑Subject H‑1B Petitions” 1/8/21, 86 FR 1676, https://www.federalregister.gov/documents/2021/01/08/2021-00183/modification-of-registration-requirement-for-petitioners-seeking-to-file-cap-subject-h-1b-petitions?utm_source=chatgpt.com give apt description of what we can expect in the upcoming proposed rule:
DHS is amending its regulations governing the selection of registrations submitted by prospective petitioners seeking to file H-1B cap-subject petitions (or the selection of petitions, if the registration process is suspended), which includes petitions subject to the regular cap and those asserting eligibility for the advanced degree exemption, to allow for ranking and selection based on wage levels. When applicable, USCIS will rank and select the registrations received generally on the basis of the highest OES wage level that the proffered wage equals or exceeds for the relevant SOC code in the area of intended employment, beginning with OES wage level IV and proceeding in descending order with OES wage levels III, II, and I. The proffered wage is the wage that the employer intends to pay the beneficiary. This ranking process will not alter the prevailing wage levels associated with a given position for U.S. Department of Labor (DOL) purposes, which are informed by a comparison of the requirements for the proffered position to the normal requirements for the occupational classification. This final rule will not affect the order of selection as between the regular cap and the advanced degree exemption. The wage level ranking will occur first for the regular cap selection and then for the advanced degree exemption….
… DHS recognizes that, under this final rule, it is less probable that USCIS will select registrations (or, if applicable, petitions) that reflect a wage level that is lower than the prevailing wage level II. DHS agrees with the comment that registrations (or, if applicable, petitions) reflecting prevailing wage levels II, III, and IV will have greater chances of being selected compared to the status quo. To the extent that recent foreign graduates, STEM-track or otherwise, in Optional Practical Training (OPT) can gain the necessary skills and experience to warrant prevailing wage levels II or above, the final rule may result in greater chances of selection of registrations (or, if applicable, petitions) for those beneficiaries. Further, recent graduates with master’s or higher degrees from U.S. institutions of higher education already benefit from the advanced degree exemption and cap selection order, as eligibility for that exemption increases their chance of selection. A registration or petition, as applicable, submitted on behalf of an alien eligible for the advanced degree exemption is first included in the submissions that may be selected toward the regular cap projection. If not selected toward the regular cap projection, submissions eligible for the advanced degree exemption may be selected toward the advanced degree exemption projection. This existing selection order increases the chance of selection for registrations or petitions submitted on behalf of aliens who have earned a master’s or higher degree from a U.S. institution of higher education….
If USCIS has received more registrations on the final registration date than necessary to meet the H-1B regular cap under Section 214(g)(1)(A) of the Act, USCIS will rank and select from among all registrations properly submitted on the final registration date on the basis of the highest OES wage level that the proffered wage equals or exceeds for the relevant SOC code and area of intended employment, beginning with OES wage level IV and proceeding in descending order with OES wage levels III, II, and I. Where there is no current OES prevailing wage information for the proffered position, USCIS will rank and select petitions based on the appropriate wage level that corresponds to the requirements of the proffered position. If USCIS receives and ranks more registrations at a particular wage level than the projected number needed to meet the numerical limitation, USCIS will randomly select from all registrations within that particular wage level a sufficient number of registrations needed to reach the numerical limitation.
With the total emphasis on higher wage/SOC level in the old rule which can be expected to be in the upcoming proposed rule, the question turns to how it will play out in March in the next H-1B selection if a new rule is implemented by then. The selection rate for this past March’s cap H-1B registration rose to 35.7% under the H-1B Modernization Rule which put many restrictions in place and raised the registration filing fee per applicant from $10 to $215. There were 336,153 eligible unique beneficiaries and 120,141 selections, leaving 216,012 unselected applicants. https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations/h-1b-electronic-registration-process Approximately 85,000 cap H-1B visas are awarded every year. There is as yet no discernible information on the split between those applicants who registered under the regular as opposed to the Masters cap nor the salary levels under which they registered. But given the percentages and the number of the non-selected, it would stand to reason that most if not all level I applicants would not be selected under a proposed new rule. Having to pay $215 for an almost certain “no” will severely depress the number of organizations willing to pay the fee for level I positions.
On the fate of the earlier rule, it was blocked in September 2021 by District Court Judge Jeffrey S.White in Chamber of Commerce of the United State of America et al v. United States Department of Homeland Security et al, Case No. 4:20-cv-07331 (N.D.Ca. 9/15/21, https://www.pacermonitor.com/view/OPCZVAQ/Chamber_of_Commerce_of_the_United_v_United_States_Department_of_Homeland__candce-20-07331__0158.0.pdf, and withdrawn in December of that year https://www.federalregister.gov/documents/2021/12/22/2021-27714/modification-of-registration-requirement-for-petitioners-seeking-to-file-cap-subject-h-1b-petitions. The timing of the earlier rule at the end of the first Trump Administration allowed the incoming Biden Administration to vacate the rule. Timing in the first year of the second Trump Administration will not be a factor.
However, it would be a tremendous shame to change to a wage-based selection process as geniuses are generally not identified by high wage levels coming out of colleges and universities, even on the Masters level, and to miss them and force them to leave the country would only weaken this nation’s ability to compete against the rest of the world, especially against our adversaries. Imagine personages like Albert Einstein, Bill Gates, or Elon Musk who did not astound with their academic genius in their universities, and what would happen if they were just graduating today (Bill Gates never graduated) and faced with the prospect of having to obtain a H-1B visa at the level III or level IV OES wage level to have the best shot of selection.
