Feds put finger on H-1B lottery scale to favor higher earners
- Reference: 1758660880
- News link: https://www.theregister.co.uk/2025/09/23/h1b_lottery_rules_favor_higher_earners/
- Source link:
The US Department of Homeland Security's Citizenship and Immigration Services (USCIS) has [1]released the text of a proposed rule that was first [2]advanced in July, which would shift the H-1B program from a purely randomized lottery to a wage-weighted draw favoring applicants with higher-paying job offers.
H-1B visas are designed to attract talented individuals to fill high-skill roles – ostensibly ones that would be difficult to fill with American workers. The program is limited to 85,000 people annually, after which point a lottery is held to randomly select applicants. If fewer applications are received, the lottery is not held, but that hasn't been the case in more than a decade.
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The current process was [4]defined during the Biden administration and limited H-1B lottery entries to one per person, regardless of the number of qualifying H-1B job offers an individual had received. The newly proposed rule keeps the one-to-one entry system for each unique applicant but weights the lottery by wage level, giving up to four entries to those with the highest-paying offers.
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"When random selection is required … USCIS would conduct a weighted selection among the registrations … generally based on the highest Occupational Employment and Wage Statistics (OEWS) wage level that the beneficiary's proffered wage would equal," the proposal explains.
For those unfamiliar, the Bureau of Labor Statistics' Occupational Employment and Wage Statistics (OEWS) program compiles [7]salary data for hundreds of occupations, reporting average pay and percentiles. The Department of Labor uses that data to define four prevailing wage levels for H-1B purposes, which roughly correspond to the 17th, 34th, 50th, and 67th percentiles of wages in a given occupation.
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Software developers, for example, earn anywhere from $79,850 at the 10th percentile to $211,450 at the 90th percentile, according to May 2024 OEWS figures. That data underpins DOL's wage-level system. As far as USCIS and DHS are concerned, "salary generally is a reasonable proxy for skill level."
Under the proposal, USCIS would keep its beneficiary-centric lottery but weight it by wage level. Level IV jobs would get four entries in the draw, Level III three, Level II two, and Level I one. Each unique person would still count only once toward the annual cap, regardless of how many registrations they received.
USCIS argues that prioritizing higher wage levels better serves Congressional intent by favoring higher-skilled, higher-paid roles and discouraging use of H-1B for lower-paid positions.
[9]Don't panic: H-1B visas will cost companies $100K only for new petitions
[10]Uncle Sam claims H-1B fraud crackdown is working as registrations drop 25%
[11]H-1B visa fraud alive and well amid efforts to crack down on abuse
[12]H-1B fraud consultancies grow, with application abuse openly discussed online
"Pure randomization does not serve the ends of the H-1B program or Congressional intent to help U.S. employers fill labor shortages in positions requiring highly skilled workers," USCIS said in the rule proposal. It noted that wage levels three and four workers were the least represented in H-1B applications between FY 2019 and FY 2024, suggesting that companies were more interested in reducing labor expenses than filling jobs with talent that couldn't easily be found at home.
"The changes proposed in this rule would better ensure that the H-1B cap selection process favors relatively higher-skilled, higher-valued or higher-paid foreign workers rather than continuing to allow numerically-limited cap numbers to be allocated predominantly to workers in lower skilled or lower paid positions," USCIS said.
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The news follows a Friday proclamation from President Trump that imposed a [14]$100,000 fee on employers for new H-1B petitions filed after September 21, with limited exemptions. Existing H-1B holders and approvals filed before that time [15]aren't subject to the fee.
As the rule is just a proposal, changes could be made between now and when it goes into effect. Those concerned about the changes can submit a comment for the next 60 days, after which USCIS will make revisions. ®
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[1] https://www.federalregister.gov/public-inspection/2025-18473/weighted-selection-process-for-registrants-and-petitioners-seeking-to-file-cap-subject-h-1b
[2] https://www.theregister.com/2025/07/20/h_1b_job_lottery/
[3] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_onprem/publicsector&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=2&c=2aNMYdNXouu2muyyuX6xkkQAAAU8&t=ct%3Dns%26unitnum%3D2%26raptor%3Dcondor%26pos%3Dtop%26test%3D0
[4] https://www.federalregister.gov/documents/2024/02/02/2024-01770/improving-the-h-1b-registration-selection-process-and-program-integrity
[5] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_onprem/publicsector&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=4&c=44aNMYdNXouu2muyyuX6xkkQAAAU8&t=ct%3Dns%26unitnum%3D4%26raptor%3Dfalcon%26pos%3Dmid%26test%3D0
[6] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_onprem/publicsector&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=3&c=33aNMYdNXouu2muyyuX6xkkQAAAU8&t=ct%3Dns%26unitnum%3D3%26raptor%3Deagle%26pos%3Dmid%26test%3D0
[7] https://data.bls.gov/oesprofile/
[8] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_onprem/publicsector&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=4&c=44aNMYdNXouu2muyyuX6xkkQAAAU8&t=ct%3Dns%26unitnum%3D4%26raptor%3Dfalcon%26pos%3Dmid%26test%3D0
[9] https://www.theregister.com/2025/09/22/h1b_visa_changes/
[10] https://www.theregister.com/2025/05/15/h1b_applications_droped/
[11] https://www.theregister.com/2024/04/09/h1b_visa_fraud/
[12] https://www.theregister.com/2023/07/01/h1b_fraud/
[13] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_onprem/publicsector&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=3&c=33aNMYdNXouu2muyyuX6xkkQAAAU8&t=ct%3Dns%26unitnum%3D3%26raptor%3Deagle%26pos%3Dmid%26test%3D0
[14] https://www.theregister.com/2025/09/20/visa_h1b_reform/
[15] https://www.uscis.gov/newsroom/alerts/h-1b-faq
[16] https://whitepapers.theregister.com/
Re: Tariffs on imported goods, fees for visas...
There's no possible way to implement a tax on offshoring jobs, because there's no way to measure it. If I lay off a US employee and hire an employee in another country, was that "offshoring"? What if the person I laid off was researching a market opportunity I decided against pursuing so he was no longer necessary, and the new hire is a sales rep in India where my business is booming and the existing sales rep can't handle the load?
If I reduce headcount with my staffing company in the US and increase it with my staffing company in India, how is the US government going to know since that's not reported to them? They might know about the staffing company needing fewer people but they won't be able to pin it on a specific company since they will have many clients who will be adding and reducing their staffing needs all the time. They won't know anything about the staffing company in India.
So while Trump might wish he could do this, it is a practical impossibility.
Re: Tariffs on imported goods, fees for visas...
...If I reduce headcount with my staffing company in the US and increase it with my staffing company in India...
...will you be able to use the headcount from your staffing company in India to provide services/do jobs in the US ?
...There's no possible way to implement a tax on offshoring jobs, because there's no way to measure it
And there's no need to, as the tax will hit the job or the result of it as it enters back in the US. What on earth are you talking about ?
If you build a product or provide a service with a team not based in the US and market it outside of the US - more power to you.
If you build a product or provide a service with a team not based in the US and market it inside of the US - good luck hiding it.
"... because there's no way to measure it."
Those companies are most definitely measuring it, and would be measuring the cost of doing it if there were any. You are saying there is wiggle room, which is true. That's not the same same as complete license to lie. "... how is the US government going to know since that's not reported to them?" - 100% lie is not an option for a big company.
Re: Tariffs on imported goods, fees for visas...
The whole H-1B setup isn’t some noble talent pipeline, it’s a subsidy for corporations to depress wages. Workers get squeezed while employers pocket the difference.
And outsourcing isn’t the frictionless magic trick the comment makes it sound like. You don’t just snap your fingers and replace a team in Ohio with one in Bangalore. To make it work, you’d need your own office, your own trusted managers on the ground, and constant oversight. Even then, most “outsourcing success stories” turn into horror stories - delays, quality issues, security lapses. It almost always ends in tears.
That’s why when someone in the boardroom proposes outsourcing, it’s rarely about building the business. It’s a signal that the asset strippers have arrived. They’re not steering the ship to a new destination - they’re stripping it for parts and letting it drift until it sinks.
Slavery
The framing is dishonest. Salary has never been a proxy for skill - if it were, America’s most “skilled” workers would be CEOs who can’t string a sentence together without a small army of ghost-writers, PR flacks, and behavioural psychologists propping them up (and assistants making sure nothing white is left under the nose when the 4K cameras roll).
This isn’t about talent - it’s about stacking the deck so only the biggest firms can play. They can inflate salaries on paper and swallow the $100k fee, while small businesses - the ones that might actually need rare skills - are priced out. The end result? IT workers remain unaffordable to smaller players, while the multinationals still get their carrot: a bonded, compliant workforce.
And orange governor of Amerikansky oblast gets his reelection fund (in case there will be elections).
Tariffs on imported goods, fees for visas...
Next step is a tax or penalty on offshoring jobs. I can see both sides of the coin on that, and on balance maybe it isn't such a bad thing other than for investors in those companies addicted to offshoring like IBM, Microsoft et al?