Visalaw.ai Answers: Proposed Weighted Selection Process

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Question: The government has just posted a notice of proposed rulemaking entitled "Weighted Selection Process for Registrants and Petitioners Seeking to File Cap-Subject H-1B Petitions". Please give me a rundown of what is changing.

Overview

- DHS/USCIS has proposed moving the H-1B cap selection away from a purely random lottery to a weighted selection system that generally favors higher-skilled and higher-paid beneficiaries, while preserving a chance of selection at all wage levels. The rule would apply to both the regular cap and the advanced degree exemption, and it would also establish a weighted selection method for years when USCIS must select among filed petitions because the electronic registration is suspended (e.g., due to system issues) [1][2].

- Registrants would have to indicate the highest Occupational Employment and Wage Statistics (OEWS) wage level (I–IV) that the offered wage meets or exceeds for the beneficiary’s SOC code and area(s) of intended employment; this information will be used to weight the selection probabilities. The specific NPRM text cites proposed 8 CFR 214.2(h)(8)(iii)(A)(4)(i) for this requirement [3].

- When USCIS receives more registrations than needed, it would conduct a weighted selection among unique beneficiaries based generally on their equivalent wage levels, rather than selecting purely at random as under current practice [4].

- Publication and comments: DHS indicated publication on 9/24/2025, with a 30-day public comment period starting upon Federal Register publication [5][6].

Detailed analysis

1) Current framework (baseline)

- Under the existing H-1B electronic registration process, prospective petitioners register each prospective beneficiary. USCIS then runs a selection to randomly select unique beneficiaries from properly submitted registrations; those selected receive notices allowing petition filing. This process has historically been random (lottery) within the regular cap and then the advanced degree exemption pool [7][8].

2) What the NPRM would change

- Weighted selection instead of purely random: USCIS proposes to move from a purely random selection to a weighted selection process for unique beneficiaries. The weighting would generally be tied to each beneficiary’s equivalent wage level, with higher wage levels receiving greater weight, while keeping an opportunity for selection at all levels [9][10].

- Applies to both cap pools: The weighted selection would cover registrations for both the regular cap and the advanced degree exemption (master’s cap) [11].

- Data required in registration: Registrants must indicate the highest OEWS wage level (I, II, III, IV) that the proffered wage meets or exceeds for the beneficiary’s job (SOC code) and area(s) of intended employment. USCIS anchors the weighting to this field. The NPRM cites proposed 8 CFR 214.2(h)(8)(iii)(A)(4)(i) for this requirement [12].

- If registration is suspended: In a year when USCIS suspends registration (e.g., due to technical issues), selection would occur among filed petitions, and the same weighted approach would apply rather than a purely random selection [13][14].

- Program intent: DHS states the purpose is to better align H-1B allocations with higher skill and higher pay, which it frames as better serving congressional intent, while maintaining access across wage levels [15].

3) How the weighting would work (what we know and don’t know)

- Known: Weighting is “generally based on each beneficiary’s equivalent wage levels” tied to OEWS levels I–IV, and registrants must report the level at registration. When the number of registrations exceeds projected needs, USCIS would run a weighted selection among unique beneficiaries [16][17].

- Unknown in the excerpts: The precise weights assigned to each wage level (e.g., relative multipliers or probabilities), tie-breaker rules, treatment of multiple worksites/locations for determining “area(s) of intended employment,” and verification/enforcement details for misreported wage levels. The table of contents signals sections on “Process Integrity” and “H-1B Cap-Subject Petition Filing Following Registration,” but the provided excerpts do not spell out those mechanics [18].

4) Relationship to “unique beneficiaries” and registration mechanics

- The NPRM continues to focus selection on “unique beneficiaries” as in the current rule structure, addressing the scenario where multiple registrations may be submitted for the same individual. Today, USCIS randomly selects unique beneficiaries from properly submitted registrations; the NPRM would keep selection at the beneficiary level but shift to weighted selection rather than purely random [19].

- Historically, USCIS has observed an increase in multiple registrations for the same beneficiary, which has driven prior reforms to center selection on unique beneficiaries. That backdrop remains relevant to understanding why weighting is layered onto the beneficiary-centric approach [20].

5) Scope and timing

- This is a Notice of Proposed Rulemaking; it is not yet in effect. The comment period will run for 30 days after the 9/24/2025 Federal Register publication date. Implementation details (including the first cap season it will cover) will depend on the final rule and its effective date [21][22].

Conclusion and next steps

In short, USCIS proposes to replace the current purely random H-1B cap lottery with a weighted selection system that gives higher selection odds to beneficiaries offered wages at higher OEWS levels, while preserving a chance for all wage levels. The weighting would apply in both the regular cap and the advanced degree exemption and would also be used in years when registration is suspended and selection must occur among petitions. Registrants would need to identify the beneficiary’s highest applicable OEWS wage level in the registration, which USCIS would use to weight the selection. This is a proposal; key operational details (exact weights, verification, and anti-fraud measures) will be finalized after the comment process [23][24][25][26][27][28].

Follow-up legal research questions you may want to explore

- What precise weights or selection probabilities will USCIS assign to OEWS Levels I–IV in the final rule? [29]

- How will USCIS verify the wage level selected at registration, and what evidence will be required at the petition stage? What are the penalties for misreporting? [30][31]

- How will the weighting interact with the advanced degree exemption pool (e.g., separate weighted draws, sequencing with the regular cap)? [32]

- How will “area(s) of intended employment” be applied when there are multiple worksites or remote work, and which OEWS wage data controls in those cases? [33]

- If the registration system is suspended, what specific procedures will USCIS use to weight and select among filed petitions, and what data elements will govern the weighting? [34][35]

- Will USCIS make any concurrent “process integrity” changes (e.g., anti-duplication, fraud detection, attestations) and how will those affect beneficiaries with multiple job offers? [36]

- What is the anticipated implementation timeline (which cap season) and will there be transitional provisions once the final rule is published? [37][38]

Citations:

[1] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 2)

[2] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 6)

[3] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 25)

[4] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 6)

[5] AILA 09/23/25 Today's Recent Postings Alert (Page 4)

[6] AILA8 for September 23, 2025 (Page 2)

[7] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 6)

[8] The Academic Immigration Handbook, 3rd ed. (2022) (Page 132)

[9] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 2)

[10] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 6)

[11] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 6)

[12] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 25)

[13] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 6)

[14] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 3)

[15] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 2)

[16] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 6)

[17] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 25)

[18] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 3)

[19] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 6)

[20] January 2024 H-1B regulation (Page 11)

[21] AILA 09/23/25 Today's Recent Postings Alert (Page 4)

[22] AILA8 for September 23, 2025 (Page 2)

[23] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 2)

[24] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 6)

[25] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 25)

[26] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 3)

[27] AILA 09/23/25 Today's Recent Postings Alert (Page 4)

[28] AILA8 for September 23, 2025 (Page 2)

[29] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 6)

[30] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 25)

[31] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 3)

[32] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 6)

[33] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 25)

[34] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 6)

[35] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 3)

[36] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 3)

[37] AILA 09/23/25 Today's Recent Postings Alert (Page 4)

[38] AILA8 for September 23, 2025 (Page 2)