United States: DHS Proposal to Alter the H-1B Cap Selection Process Clears Federal Review
August 11, 2025
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At a glance
- A Department of Homeland Security proposed rule that would apply a weighted selection process for H-1B cap cases has been cleared by the Office of Management and Budget (OMB).
- The next step for the proposal is publication in the Federal Register for public feedback.
- The exact content of the proposed rule – including whether or not it contains elements of the proposed allocations to the cap selection process introduced during the first Trump Administration – will not be known until publication.
- The proposal would not take effect unless and until it undergoes a public comment period and moves through the final stages of rulemaking, which typically takes several months.
The issue
A Department of Homeland Security (DHS) proposed rule that would apply a weighted selection process to the annual H-1B cap has cleared federal review. The proposal was submitted to the Office of Management and Budget (OMB) for review three weeks ago.
Though details are confidential until publication in the Federal Register, the proposed rule could seek to supplement or replace the annual H-1B cap lottery by giving priority in the selection process to registrants who meet or exceed certain criteria, such as wage or education level.
During the final weeks of the first Trump Administration, an alteration to the cap selection process was finalized by DHS that would have largely replaced the computerized H-1B lottery with a system that allocated H-1B visa numbers according to the Department of Labor’s four-level prevailing wage system. That regulation would have first distributed H-1B cap numbers to registrants offered a wage that equaled or exceeded Level IV, the highest wage tier of the prevailing wage system, then would have selected registrations in descending order from Wage Levels III, II, and I; a computerized lottery would have been used only if the number of registrations for a specific wage level exceeded the number of H-1B cap slots available. The final rule was postponed in the first days of the Biden Administration and ultimately vacated by a federal court without having been implemented.
It is not yet known whether the proposal now under review is the same as the rule finalized in early 2021.
What’s next
It is expected that the proposed regulation will be released for publication in the Federal Register in the coming days or weeks, with a public comment period of 30 or 60 days. After giving meaningful consideration to the comments, the agency would then publish a final version of the rule with an implementation period. There is no set timeframe for publication of a final rule, though the process typically takes several months.
Comments from the business community will be important to make the Administration aware of the rule’s impact on the position of the United States in the competition for global talent. If your organization wishes to comment on the proposed rule after it is published, please contact your designated Fragomen professional or the firm’s Government Strategies and Compliance Group.
This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.
