Author: Alan Lee

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.

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.

As published in the Immigration Daily on July 15, 2025

1. July 1, 2025, level I prevailing wage changes for various occupations

New prevailing wages by the Department of Labor Bureau of Labor Statistics Occupational and Wage Statistics (OEWS) which are used in determining prevailing wages in PERM labor certification applications and H-1B labor condition applications (LCAs) came out on July 1, 2025, and valid until June 30, 2026, https://flag.dol.gov/wage-data/wage-search show many more category rises than falls in pay. The below compilation includes many of the categories in the New York area at level I, the lowest of four wage levels used by the Department of Labor in its O*Net system:

• General and operations managers – + 1K – $77,293
• Marketing managers – minus 3K – $114,379
• Sales managers – plus 3K – $129,896
• Public relations managers – plus 3K – $125,819
• Computer & info systems managers – + 2K – $148,450
• Purchasing managers – + 2K – $126,506
• Architectural/engineering managers –minus 3K – $135,928
• Lodging managers – minus 7K – $55,869
• Medical & health services managers – plus 4K – $103,293
• Managers, all others – minus 3K – $103,064
• Management analysts – minus 1K – $74,402
• Market research analysts – + 1K – $61,797
• Accountants and auditors – + 2K – $73,070
• Credit analysts – plus 8K – $84,677
• Financial and investment analysts – + 2K – $87,838
• Financial specialists, all other – plus 4K – $73,195
• Computer systems analyst –minus 1K – $80,600
• Information security analysts – minus 2K – $94,016
• Computer & information research scientists – +27K – $110,011
• Computer network architects – same – $103,938
• Database administrators – +12 K – $77,438
• Database architects – minus 8K – $93,226
• Network and computer systems administrators – + 6K – $79,331
• Computer programmers – minus 6K – $74,714
• Software developers – + 8K – $103,210
• Software quality assurance analysts and testers – minus 1K – $78,624
• Web developers – minus 7K – $40,893
• Computer occupations, all other – plus 4K – $62,525
• Actuaries – minus 2K – $90,750
• Operations research analysts – + 1K – $68,869
• Statisticians – + 3K – $81,557
• Data scientists – minus 3K – $79,456
• Architects except landscape and Naval – + 2K – $67,309
• Landscape architects – minus 8K – $69,326
• Bioengineers & biomedical engineers – plus 7K – $87,630
• Chemical engineers – plus 3K – $82,597
• Civil engineers – plus 4K – $78,811
• Computer software engineers – minus 8K – $90,605
• Electrical engineers – plus 6K – $84,490
• Electronic engineers, except computer – +11 K – $101,878
• Environmental engineers – plus 1K – $71,906
• Industrial engineers – plus 6K – $81,037
• Materials engineers – +13 K – $83,054
• Mechanical engineers – + 7K – $81,432
• Engineers, all other – +17 K – $83,346
• Biochemists & biophysicists – minus 1K – $74,963
• Microbiologist – plus 3K – $63,378
• Biological scientists, all other – minus 2K – $74,838
• Epidemiologists – minus 1K – $73,694
• Medical scientists, except epidemiologists – same – $71,282
• Life scientists, all others – minus 3K – $63,814
• Chemists – plus 1K – $64,230
• Environmental sciences & specialists, including health – same – $57,200
• Economists – plus 6K – $92,082
• Lawyers – plus 5K – $98,114
• Fashion designers – minus 6K – $62,691
• Graphic designers – + 2K – $53,955
• Interior designers – + 5K – $51,022
• News analysts, reporters and journalists – + 7K – $63,128/level 2 = $181,064
• Public relations specialists – + 2K – $54,995
• Editors – + 4K – $63,606/level 2 = $90,563
• Technical writers – minus 5K – $47,195
• Registered nurses – plus 6K – $88,941
• Nurse practitioners – same – $113,630
• Acupuncturists – plus 1K – $64,979
• Medical and clinical laboratory technologists – minus 1K – $49,483
• Medical and clinical laboratory technicians – $49,483
• Chefs and head cooks – plus 5K – $47,154
• Restaurant cooks – plus 1K – $34,611
• Sales engineers – plus 7K – $101,171

The bottom lines appear to be that the pluses far exceed the minuses; premiums are on individuals with professional technical skills; managers do not to command the level of increases as persons with professional technical skills; and hiring in certain computer occupations may be adversely affected by the rise of generative artificial intelligence.

2. Checking to see whether the new medical form is being used

The new edition of the I-693 Instructions for Report of Medical Examination and Vaccination Record came into effect on July 2, 2025, and submitting a medical examination on the former edition may be cause for rejection of the I-485 adjustment of status application. The rule is that If the civil surgeon signs your form on or before July 2, 2025, you must use the 03/09/23 or the 01/20/25 edition. If the civil surgeon signs your form July 3, 2025 or later, USCIS will accept only the 01/20/25 edition. https://www.uscis.gov/i-693 This may be concerning to law firms as some designated physicians and clinics may still be issuing medical findings on the former edition in the first days of new edition use, and the law firm cannot open the medical (closed medical required). In case of doubt, the client can be asked what edition was used and date of signature as the client is usually given a copy of the medical by the physician/clinic. If not, the client could check with the doctor’s office to ensure that the correct edition was used.

3. Online H-1B cap filing reminder

This year saw an increase in the number of H1B selections https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations/h-1b-electronic-registration-process due to the reforms instituted by USCIS in the H-1B Modernization Rule which included enhanced registration payments per candidate from $10 to $215 and that, regardless of how many organizations submitted individual registration applications for one person, that person would only be counted once. Many law firms handling H-1B cap petitions worked until the last week to submit selected H-1B registration petitions by the deadline of June 30, 2025. Online filings were encouraged to reduce the possibilities of error. A reminder is that in the latter circumstance – especially when dealing with smaller sized companies, they should be given warning well ahead of time that they must have sufficient monies on their credit cards for online case filings, and they should perhaps even notify the credit card companies ahead of time that they will be putting heavy charges on their cards. USCIS charges are no longer a few hundred dollars, rather over $3000 and $4000 on many occasions and with premium processing over $6000 for most companies – serious money to the credit card companies, especially where organizations are sponsoring multiple beneficiaries. Even if the company credit card does not exceed the credit line, the charges may be rejected as abnormal by the credit card company necessitating last-minute communications between the designated person on the credit card and the credit card company. In one situation involving a last-minute online filing, the designated person could not be reached, and the petitioning organization had to reach out to its second bank after the first bank rejected its request for ACH transfer to pay for the filing.

4. Warning on what to look out for in nonimmigrant visa interviews – most likely applicable also to CBP at ports of entry

The State Department restarted FMJ visa interviews again on June 18, 2025, with heavy vetting on social media. https://www.msn.com/en-us/news/us/state-dept-restarts-student-visa-interviews-with-tougher-social-media-rules/ar-AA1GYPGN  The Marco Rubio cable said for officers to examine student profiles “to identify applicants who bear hostile attitudes towards our citizens, culture, government, institutions, or founding principles; who advocate for, aid, or support designated foreign terrorists and other threats to US national security; or who perpetrate unlawful antisemitic harassment or violence.”  Applicants must make public and accessible all portions of their social media accounts and should be penalized if they refuse. If portions of accounts remain set to private or are otherwise limited, officers should treat the case as any other where an applicant fails to provide certain information on request – “You must consider whether such failure reflects evasiveness or otherwise calls into question the applicant’s credibility.” The new guidelines affect new applicants; those whose cases are currently in progress –that includes applicants who have not yet been interviewed and those whose interviews have been waived; and those who have already been interviewed and are otherwise approvable but have not yet been finalized as approved.

It is clear that in this Administration, Customs and Border Protection (CBP) closely follows the lead of the Department of State. Thus, nonimmigrants who are traveling internationally should be aware that the above guidelines may apply to them even if they are not applying for visas at American consulates or embassies. They and even permanent residents and US citizens who fear intrusive searches at ports of entry may consider taking proactive steps. If you fear border searches of your phone, advice from a New York Times columnist [Sorry, cannot locate article] is to consider wiping your data or even buying a cheap backup device. If a US citizen, turn off biometrics such as fingerprint and facial recognition sensors and only rely on the passcode because it is legally more difficult for the government to compel you to share a passcode that it is for an officer to take your phone and hold it up to your face to unlock it.