United States: DHS Final Rule on Weighted H-1B Cap Selection Now Under OMB Review
December 22, 2025
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At a glance
- A Department of Homeland Security final regulation on the weighted H-1B allocation for the annual computerized H-1B cap lottery system has been submitted to the Office of Management and Budget for review – initiating the final step in the federal rulemaking process.
- OMB review is expected to proceed quickly, and an advance copy of the final rule may be available in the coming days.
The issue
The federal Office of Management and Budget (OMB) is now reviewing the final rule that would modify the selection process in the H-1B cap lottery so that registrants for the lottery would be entered into the selection pool using a weighted system to give greater odds of selection to beneficiaries with the highest wages according to the Department of Labor’s four-level prevailing wage system.
A closer look
In September, the United States Citizenship and Immigration Services (USCIS) issued a proposed rule to revise the annual H-1B cap lottery process in order to give an advantage in the selection process to those with the highest wage for their occupation and area of employment corresponding to the Department of Labor’s Occupational Employment and Wage Statistics (OEWS). Under the proposed rule, beneficiaries with the highest offered wage level for their occupation and area of employment would be entered in the selection pool four times, to correspond with the highest tier of the Department of Labor’s wage structure, Level 4. A Level 3 beneficiary would be entered three times; a Level 2 beneficiary, two times; and a Level 1 beneficiary, once.
Following notice and comment, USCIS has now finalized the rule and submitted it to OMB for review. The contents of the final rule will remain confidential until it is released for publication. OMB is likely to undertake expeditious review, and an advance copy of the final rule may be available in the coming days.
What’s next for the final regulation
If the rule clears OMB review, it would be published in the Federal Register with an implementation date. Though the timing of the regulation is not yet known, an implementation date of 30 days after publication is possible. The relatively quick finalization and submission of the rule to OMB makes it possible for the rule to take effect in time for the FY 2027 cap season set to begin in March 2026, although legal challenges to the rule are possible.
Fragomen is closely tracking the progress of the regulation and will provide an update when the regulation clears OMB review.
This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.
