On December 29, 2025 the U.S. Citizenship and Immigration Service (“USCIS”) published regulations in the Federal Register changing the allocation of H-1B visas for Federal Fiscal Year 2027. H-1B visas are available for employers who wish to employ a foreign national in a specialty occupation or job that normally requires a bachelor’s degree in a specific field. The Immigration and Nationality Act allocated 85,000 new H-1B visas every year, with 20,000 of those visas allocated to foreign nationals that earned a postgraduate degree from a US university.
H-1B visas are very popular. In years past, USCIS has received up to three quarter of a million petitions chasing 85,000 visas. Because USCIS regularly receives more than 85,000 new H-1 petitions, it assigns them to employers using a random lottery selection. The change brought by the new regulation is the incorporation of the employee’s salary and salary survey data into the selection process to prioritize the selection of higher skilled and more experienced workers.
The U.S. Department of Labor (“DOL”) regulates the wages paid to H-1B workers. Employers are required to pay the prevailing wage to H-1B workers. The DOL uses a four-tier location and occupation specific salary survey to determine the prevailing wage in the H-1B visa program. The DOL’s salary survey assigns the lowest wages paid to Level I entry level workers and the highest wages paid to Leve IV fully qualified workers. USCIS is adopting DOL’s wage level as a proxy for skill and experience, and prioritizing the selection of higher skilled and more experienced H-1B workers. While entries will still be selected at random, petitioners seeking to hire Level IV H-1B workers will get four entries into the lottery. Level III workers will receive three entries. Level II workers will be entered into the lottery twice, and Level I workers only once.
The H-1B lottery will open in early March. Since experience and skill levels are now a factor in the lottery, employers seeking to petition for new H-1 workers should inventory their potential candidates early and consult with counsel to determine the appropriate wage level before submission to the H-1 lottery.
