DHS Finalizes Wage- Weighted H-1B Cap Selection for FY 2027

As anticipated, the Department of Homeland Security (DHS) has issued a final rule, scheduled to be published on December 29, 2025 that changes how H-1B cap registrations are selected, replacing the fully random lottery with a wage-weighted selection process. The rule takes effect February 27, 2026, and will apply to the upcoming FY 2027 H-1B cap season.

While the rule introduces substantial new requirements, having clarity now allows employers to plan ahead and prepare strategically for the FY 2027 H-1B cap season.

Key Changes to the H-1B Cap Process

Below are key elements of the final rule:

1. Wage-Weighted Selection

When USCIS must conduct a selection, registrations will be weighted based on the OEWS wage level tied to the position’s SOC code and area of intended employment:

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

Higher-paid, higher-skill roles will have improved odds of selection, while all wage levels remain eligible.

2. Beneficiary-Centric System Continues

As in the last 2 years, each unique beneficiary will be counted only once toward the annual cap, regardless of the number of registrations are submitted or how many weighted entries apply. This means that registrations will be selected by beneficiary rather than by individual registration.

3. More Information Will Be Required at Registration

As part of registration, employers will need to provide:

• The applicable SOC code
• The highest OEWS wage level the offered wage equals or exceeds and
• The area of intended employment that served as the basis for the OEWS wage level

This information will form the basis for the wage-weighted selection process and must be consistent with the Labor Condition Application (LCA) and any subsequently filed H-1B petition.

4. Consistency and Enforcement at the Petition Stage

If selected, H-1B petitions must:

• Match the registration exactly (SOC, wage level, and area of intended employment) and 
• Be supported by evidence substantiating the wage level as of the registration date

Amendments or refilings intended to increase selection odds may lead to petition denials or revocations.

Does This Mean the H-1B Lottery Is Dead?

No! With proper planning and early review, qualified candidates can still move forward successfully under the new framework.

In fact, this may be good news for employers with candidates who have been through multiple cap cycles without success, as those individuals are often further along in their careers and naturally fall at higher wage levels, which may improve their odds under the new weighted selection system.

What This Means for Employers

• Earlier, More Detailed Planning is Required

While prior cap registrations required only basic employer and employee information, employers will now need to confirm SOC codes, OEWS wage levels, and areas of intended employment before registrations can be submitted. As a result, both employee and employer-side details must be finalized earlier in the process.

In practical terms, this means having clarity on the anticipated job title, core job duties, salary, and worksite(s) for each candidate by March 2026.

Employers should use October 1, 2026, the earliest possible start date for an FY 2027 H-1B petition, as the key planning benchmark when defining roles and locations.

• Change-of-Status (COS) strategy matters more than ever.

Due to the $100,000 fee announced earlier this fall, (which is separate from the new wage-weighted lottery system), employers can no longer rely on out-of-country (OOC) filings to avoid travel restrictions, delay an October 1 start date, or defer wage obligations.

It remains possible to file H-1Bs as Change-of-Status cases without triggering the $100,000 fee, provided the beneficiary is already in the United States and eligible to change status. As a result, a careful upfront review of maintenance of status is essential to avoid filings that unexpectedly require OOC processing and trigger the fee.

As a practical matter, beneficiaries filing via COS should expect travel restrictions during the cap season and generally should plan not to travel internationally from approximately April 1 through October 1, 2026.

With thoughtful planning and early eligibility review, strong, well-qualified candidates remain viable, even as the H-1B process becomes more front-loaded and strategic. We are actively helping clients adjust their FY 2027 H-1B strategies, assess candidate eligibility, and plan filings that minimize risk while staying compliant.

Early in the new year, Weaver Schlenger will provide additional guidance and host a webinar to walk through these changes in more detail. Stay tuned!