Legislative lowdown: New rule favors higher-wage workers in H-1B selection

Higher-paid workers will have greater chances of being selected for the H-1B visa program under a new rule issued by the Department of Homeland Security (DHS) last month.

On Dec. 23, the US Citizenship and Immigration Services (USCIS) announced that the DHS was amending the process for H-1B visa recipient selection from a random lottery to one that “gives greater weight to those with higher skills.”

Starting on Feb. 27, 2026, H-1B visa applicants will be categorized by their earnings levels, based on the Occupational Employment and Wage Statistics program, according to the DHS rule. Those at the highest wage level—level IV—will be entered into the lottery four times, while those at level I will be entered just once.

The DHS rule is the latest change that will affect employers preparing for the H-1B cap lottery registration season for FY 2027, which will take place this March.

Employers that register for the upcoming lottery will have to submit wage and job information for the workers they’re seeking to sponsor, attorneys with law firm Ogletree Deakins noted in a blog post. Low-wage workers will have a lower chance of being selected for an H-1B visa.

Why Trump wants to curtail H-1B visas. The rule is part of President Donald Trump’s efforts to overhaul the H-1B visa program, which allows employers to hire foreign-born talent for jobs in STEM-related fields, on grounds it disfavors American workers. “The new weighted selection will better serve Congress’ intent for the H-1B program and strengthen America’s competitiveness by incentivizing American employers to petition for higher-paid, higher-skilled foreign workers,” said Matthew Tragesser, a USCIS spokesman, in a statement.

It’s difficult to assess the validity of the claim that employers use the H-1B program to hire foreign-born workers at a lower wage rate in lieu of available domestic talent, researchers with the Congressional Research Service said in an April 2025 memo. This is partly because the group of employers that use the H-1B program are part of a specific set of industries that includes science, computer, and information technology, so comparing their employment patterns with businesses that don’t hire H-1B workers can yield inaccurate results.

The bipartisan Economic Innovation Group contended that data cited by the White House showing high unemployment rates among computer science graduates was misleading, and noted that STEM workers earn much higher incomes than employees in other industries, even as more foreign-born talent has been hired into US-based STEM roles in recent years.

H-1B at a crossroads. In addition to this new weighted selection process, the Trump administration is also imposing a $100,000 fee on new H-1B visa petitions. This new cost is significant, as private employers have historically paid fees ranging from just several hundred to a few thousand dollars to sponsor H-1B visa petitions, HR Brew previously reported.

The policy is expected to deter companies from hiring lower-wage workers on H-1B visas, according to research from the Federal Reserve Bank of Richmond. Employment of foreign-born workers at universities and non-profits could take a particular hit, as these organizations were previously exempt from the lottery.

A number of US employers paused H-1B hires and pulled back on sponsorship for the program following news of the $100,000 fee. Federal Reserve Bank of Richmond research suggests that companies may shift operations to other countries—notably India and Canada—if they have trouble hiring through the H-1B program.