How hiring skilled foreign talent just got more complicated for employers

Hiring skilled foreign talent just got more complicated for employers.

The Department of Homeland Security (DHS) has issued a final rule changing how the United States Citizenship and Immigration Services (USCIS) selects cap-subject H-1B registrations when demand exceeds the annual cap. Instead of treating all registrations equally, USCIS will use a “weighted” random selection that generally gives better odds to higher-paying positions, based on the government wage level tied to the offered salary.

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When does this start?

The rule was published in the Federal Register on December 29, 2025, and becomes effective 60 days after publication, which would be February 27, 2026.

What is changing?

The H-1B cap selection process is a lottery. Under the new rule, USCIS will still select beneficiaries entered into the lottery at random, but some registrations will effectively get more “lottery tickets” (entries) depending on the wage level.

USCIS will assign each unique beneficiary to a wage level (Level I–IV) and enter them into the selection pool like this:

Wage Level IV: 4 entries
Wage Level III: 3 entries
Wage Level II: 2 entries
Wage Level I: 1 entry

Even if a person has multiple entries for weighting purposes, USCIS will still count the person only once toward the visa cap numbers.

How does USCIS determine the wage level?

*Catherine Renshaw, an associate at Fennemore, focuses on immigration law*.

*Alycia Moss is a Director in Fennemore’s Immigration practice group*.

The wage level is tied to the employer’s offered wage, the job’s Standard Occupational Classification (SOC) code, and the area(s) of intended employment. For selection purposes, the registration is assigned based on the highest wage level that the offered wage meets or exceeds for that SOC and location(s).

Two practical details matter:

If the wage is listed as a range, USCIS looks at the lowest number in the range to determine the wage level.
If the worker will work in multiple locations, the registration must use the lowest corresponding wage level among those locations/positions for selection purposes.

What if more than one employer registers the same person?

If multiple employers submit registrations for the same beneficiary at different wage levels, USCIS will treat that beneficiary as the lowest wage level among all registrations for weighting purposes. Bottom line: one lower-wage registration can reduce the selection odds for that person overall, even if another employer registers them at a higher wage.

Will employers need to prove the wage level later?

Yes. DHS explains that cap-subject petitions filed after selection must include evidence supporting the wage level chosen on the registration as of the registration date. DHS notes this can include a printout from the Department of Labor, Office of Foreign Labor Certification Wage Search website for the SOC code and area(s) of intended employment. Additionally, filing the H-1B petition later in the process requires employers to prove their ability to pay the higher wage and that the selected wage level is appropriate.

What does this mean for employers?

Wage level may affect selection odds. Higher wage levels receive more “entries,” which can increase the chance of selection.
Entry-level roles may face headwinds. Level I roles still have a chance, but they receive fewer entries.
Multi-location roles require extra care. If any worksite pushes the role to a lower wage level, USCIS uses the lowest level for selection.
Coordination with candidates is more important. Multiple employer registrations could unintentionally lower the beneficiary’s effective wage level for selection.

What are the recommended next steps?

Plan early for FY 2027: confirm job title/duties, SOC code, worksite(s), and offered wage before registration.
Document the wage level as of the registration date (save Wage Search printouts and related support).
Talk to candidates about whether other employers may register them, and the potential impact if any registration is at a lower wage level.
Consider backup options for key hires (cap-exempt strategies where available and other non-immigrant options, depending on the role and candidate).

Authors: Alycia Moss is a Director in Fennemore’s Immigration practice group, focusing her practice on guiding businesses, families, and individuals through the complexities of U.S. immigration law. Reach her at amoss@fennemorelaw.com. Catherine Renshaw is an associate attorney at Fennemore whose practice focuses on immigration law, with extensive experience representing clients in matters before U.S. Citizenship and Immigration Services, immigration court, Immigration and Customs Enforcement, and the federal courts. Reach her at crenshaw@fennemorelaw.com.