As published in the Immigration Daily on October 3, 2025
The Trump administration proposed by regulation a new method of selecting cap H-1B registrants for next year’s selection process in its September 24, 2025, “Weighted Selection Process for Registrants and Petitioners Seeking to File Cap-Subject H-1B Petitions.” https://www.federalregister.gov/documents/2025/09/24/2025-18473/weighted-selection-process-for-registrants-and-petitioners-seeking-to-file-cap-subject-h-1b. Public comments are due by October 24, 2025. The gist of the rule is that selection will favor those organizations willing to pay selectees the highest wage level assuming that the H-1B cap is exceeded.
Prior to the Administration’s surprise Presidential Proclamation of September 19, 2025, placing an add-on fee of $100,000 for new H-1B petitions filed on or after September 21, 2025, https://www.whitehouse.gov/presidential-actions/2025/09/restriction-on-entry-of-certain-nonimmigrant-workers/, there was no doubt that the cap would be exceeded. Now there may be a modicum of doubt since many organizations will be reluctant to post up $100,000 to bring in an applicant from overseas.
Assuming that expected legal challenges fail, the Proclamation’s $100,000 fee remains, and the number of registrants exceed the cap, the rules read like a real lottery under which organizations that pay the most have more chances to win – like lottery balls, you get four balls for level IV, three for level III, two for level II, and one for level I. If there are multiple organizations sponsoring an individual, the number of balls the registrant receives depends upon the lowest wage level of any of the registrations.
USCIS is wary that there may be some trickery such that some petitioners or their related entities filing a H-1B petition after having the applicant selected with the highest amount of balls and then transferring or amending a petition later by themselves or a “related entity” which would then reduce the wage to an amount in a lower wage level. Another possible trick mentioned would be to have a new or amended petition which includes the same proffered wage but changes the work location so that the proffered wage now corresponds to a lower wage level in the desired location. “Related entity” is being read expansively in the proposed rule to include a parent company, subsidiary, or affiliate company, but would not be limited only to those companies legally related to the petitioner through corporate ownership and control – that some factors relevant to relatedness may include familial ties, proximity of locations, leadership structure, employment history, similar work assignments, and substantially similar supporting documentation. USCIS would consider the totality of the circumstances.
Situations that might not necessarily raise the ire of USCIS and be found permissible could be work location changes between the time of registration and the time of filing the petition, such as in the case of an employer with multiple offices putting the person at a different office at a wage that equals or exceeds the same equivalent wage level for the new location.
Procedurally, in filling out the selection information, organizations would have to select the box for the highest OEWS wage level for the registration and provide the appropriate SOC code and area of intended employment.
On the possibility that the H-1B quota may not be entirely filled next year, it should be remembered that Indians fill approximately 70% of the H-1B positions with most being selected from overseas. Organizations may not be willing to pay $100,000 each to bring them over. Additionally, the traditional selection process does not merely select 85,000 to fill the regular and Masters caps. USCIS in the past has selected over 120,000 as it anticipates that there will be many non-filings by organizations that do not follow through, denials, withdrawals, and rejections.