The new year brings a fresh allotment of H-1B nonimmigrant visas and the anticipated lottery selection process. This year in particular brings along with it a host of new updates that will impact the H-1B lottery process and use of the H-1B nonimmigrant visa category in general. In the famous lyrics of Bob Dylan, the times they are a-changin’ . . . .

Weighted Selection Process for the Upcoming H-1B Lottery

On December 29, 2025, the U.S. Department of Homeland Security (“DHS”) published a final rule amending the H-1B cap selection process, implementing a weighted, wage-based lottery system for cap-subject H-1B petitions (the “Final Rule”). The Final Rule, effective February 27, 2026, will apply to this coming year’s H-1B registration process (i.e., for the FY 2027 registration season opening in March 2026) as well as subsequent years.

The Final Rule replaces the previous random selection process with a weighted lottery that favors higher-paid (and thus, presumably, higher-skilled) foreign workers. Under the revised system, H-1B registrations are assigned to one of four wage levels based on the offered wage for the position and the relevant Standard Occupational Classification (“SOC”) code in the area of intended employment. The wage analysis is nothing “new” to the H-1B process, but it will now have a direct impact on the lottery registration and odds of selection. Specifically, registrations reflecting wage Level IV will be entered into the selection pool four times, Level III three times, Level II twice, and Level I once. Consistent with the changes implemented in previous fiscal years, each unique beneficiary is counted only once toward the numerical allocation, regardless of the number of registrations submitted.

The stated intent of the Final Rule is to incentivize employers to offer higher wages and petition for higher-skilled positions, thereby aligning the H-1B program with Congressional intent to attract top global talent and protect United States workers’ wages. The Final Rule maintains opportunities for employers to secure H-1B workers at all wage levels, but significantly increases the probability of selection for higher wage levels.

The changes being implemented in the Final Rule will require additional data and information to be provided along with the lottery registrations. Indeed, the Final Rule introduces additional requirements for registrants, including the selection of the highest applicable wage level, provision of the SOC code, and identification of the area of intended employment. Registrants must certify the legitimacy of the job offer and the accuracy of the information provided.

The Final Rule represents a significant shift in the H-1B cap selection process, prioritizing higher-wage and higher-skilled foreign workers while maintaining opportunities across all wage levels. Employers, particularly small entities and those seeking entry-level talent, should assess the impact on hiring strategies and prepare for changes in selection probabilities and compliance requirements. Employers of all sizes should review job descriptions for candidates to be entered in the lottery, work with counsel to ensure that positions are classified under appropriate SOC codes, and determine prospective wage rates if selected in the lottery.

Presidential Proclamation: The $100,000 Bogey

As previously reported here, Presidential Proclamation 10973 (the “Proclamation”) purports to restrict the entry into the United States of certain H-1B visa holders unless a fee of $100,000 is paid. Although this fee requirements does not apply to most petitions requesting an extension of existing H-1B status, amendment to H-1B status, change of employer, or even a change of status for individuals physically present in the United States, it will impact certain lottery registrations given its application to petitions for H-1B beneficiaries who are outside of the United States and/or those requesting consular notification upon approval of the H-1B petition.

There remain multiple lawsuits pending as to the legality of the Proclamation, but, at least one federal judge in the District of Columbia has upheld the Proclamation in the lead case of Chamber of Commerce of the United States of America v. United States Department of Homeland Security. In that case, the judge ultimately determined that “Congress has granted the President broad statutory authority, which he has used to issue the Proclamation addressing, in the manner he sees fit, a problem he perceives to be a matter of economic and national security.”

Again, other lawsuits remain pending, but, at the present time, employers should operate with the assumption that the Proclamation is effective and applies to the specific filings as noted in the guidance from DHS and other relevant agencies.

Social Media Screening

As previously reported here, H-1B and H-4 nonimmigrant visa applicants - especially those applying through Mission India - continue to face dramatic delays in interview appointment availability and ultimate visa stamp processing. With the coming spring and summer travel season, employers and H-1B workers are well-advised to be aware of these delays and plan or even postpone travel accordingly.

The times are most definitely a-changin’ as to the commonly used H-1B nonimmigrant visa category. If you have questions regarding these changes or would like to discuss strategies for the upcoming H-1B lottery registration season, please reach out to a member of the Immigration Practice Group at Koley Jessen.

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