# Weighted Selection Process for Registrants and Petitioners Seeking To File Cap-Subject H-1B Petitions > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2025-23853 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** December 29, 2025 - **Citation:** 90 FR 60864 ## Text DEPARTMENT OF HOMELAND SECURITY 8 CFR Part 214 [CIS No. 2847-26; DHS Docket No. USCIS-2025-0040] RIN 1615-AD01 Weighted Selection Process for Registrants and Petitioners Seeking To File Cap-Subject H-1B Petitions AGENCY: U.S. Citizenship and Immigration Services, DHS. ACTION: Final rule. SUMMARY: The U.S. Department of Homeland Security (DHS) is amending its regulations governing the process by which U.S. Citizenship and Immigration Services (USCIS) selects H-1B registrations for unique beneficiaries for filing of H-1B cap-subject petitions (or H-1B petitions for any year in which the registration requirement is suspended). Through this rule, DHS is implementing a weighted selection process that will generally favor the allocation of H-1B visas to higher-skilled and higher-paid aliens, while maintaining the opportunity for employers to secure H-1B workers at all wage levels, to better serve the congressional intent for the H-1B program. This rule will be effective in time for the FY 2027 registration season. DATES: This final rule is effective February 27, 2026. FOR FURTHER INFORMATION CONTACT: Business and Foreign Workers Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, 5900 Capital Gateway Drive, Camp Springs, MD 20746; telephone (240) 721-3000 (not a toll-free call). SUPPLEMENTARY INFORMATION: Table of Contents I. Executive Summary A. Purpose and Summary of the Regulatory Action B. Summary of Costs and Benefits C. No Changes From the Notice of Proposed Rulemaking D. Implementation II. Background A. Legal Authority B. Background on H-1B Registration C. Need for Regulatory Reform III. Response to Public Comments on the Proposed Rule A. Support for the Rule and DHS Justifications 1. General Support for the Rule 2. Protecting U.S. Workers and Wages 3. Positive Impacts on Entry-Level Workers and Recent Graduates 4. Positive Impacts on International Students and New Graduates 5. Positive Impacts on Companies and the Economy B. Opposition to the Rule and Policy Objections 1. General Opposition to the Rule 2. Fairness and Equal Opportunity Concerns 3. Negative Impacts on Companies, the Workforce, and the Economy 4. Negative Impacts on National Security 5. Negative Impacts on Entry-Level Workers and Recent Graduates 6. Negative Impacts on Mid-Level Workers 7. Negative Impacts on International Students 8. Negative Impacts on STEM Fields 9. Negative Impacts on Academic Institutions 10. Negative Impacts on the Healthcare Sector 11. Negative Impacts on Rural or Underserved Communities 12. Negative Impacts on Small Businesses, Startups, and Nonprofits 13. Industry and Occupational Disparities 14. Geographic and Regional Disparities 15. Negative Impacts on Mixed Compensation Models 16. General Concerns on Wage-Based Selection 17. Concerns With the OEWS Program 18. Other Opposition C. Legal Authority, Basis, and Background 1. Statutory Authority 2. Congressional Intent 3. Previous H-1B Rulemakings and Related Court Cases 4. DHS Background and Justification for the Rule 5. Concerns the Rule Is Arbitrary and Capricious 6. Other Legal Comments D. Proposed Changes to the Registration Process for H-1B Cap-Subject Petitions 1. Proposed Weighted Selection Process 2. Required Information From Petitioners E. Process Integrity 1. Certifying the Contents of the Registration and Consequences 2. Potential Employer Wage Manipulation 3. Consistency Between the Registration and the Petition 4. Potential SOC Code Manipulation 5. Potential Job Location Manipulation 6. Multiple Registrations 7. Related Entities 8. Other Comments Related to Process Integrity F. Other Issues Relating to the Rule 1. Alternatives to the Proposed Weighting Selection Process 2. Effective Date and Implementation 3. Processing Time Outlook 4. Data and Transparency 5. Comments Related to Presidential Proclamation 10973, Restriction on Entry of Certain Nonimmigrant Workers (September 19, 2025) G. Statutory and Regulatory Requirements 1. Administrative Procedure Act (APA) 2. Regulatory Impact Analysis and Benefits (E.O.s 12866 and 13563) 3. Methodology and Adequacy of the Cost-Benefit Analysis 4. Costs 5. Benefits 6. Transfers 7. Paperwork Reduction Act (PRA) 8. Other Regulatory Requirements H. Out of Scope IV. Statutory and Regulatory Requirements A. Executive Orders 12866 (Regulatory Planning and Review), 13563 (Improving Regulation and Regulatory Review), and 14192 (Unleashing Prosperity Through Deregulation) B. Regulatory Flexibility Act of 1980 1. Final Regulatory Flexibility Analysis C. Congressional Review Act D. Unfunded Mandates Reform Act of 1995 E. Executive Order 13132 (Federalism) F. Executive Order 12988 (Civil Justice Reform) G. Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments) H. National Environmental Policy Act I. Paperwork Reduction Act of 1995 Table of Abbreviations AI—Artificial Intelligence APA—Administrative Procedure Act BLS—U.S. Bureau of Labor Statistics CBA—collective bargaining agreement CFR—Code of Federal Regulations COVID-19—Coronavirus Disease of 2019 CPI-U—Consumer Price Index for All Urban Consumers CRA—Congressional Review Act DHS—U.S. Department of Homeland Security DOW—U.S. Department of War DOL—U.S. Department of Labor E.O.—Executive Order EPA—U.S. Environmental Protection Agency ETA—Employment and Training Administration FDNS—Fraud Detection and National Security FR—Federal Register FY—Fiscal Year GDP—gross domestic product HHS—U.S. Department of Health and Human Services HR—human resources HSA—Homeland Security Act of 2002 IIE—Institute of International Education IMG—International Medical Graduate INA—Immigration and Nationality Act IRFA—Initial Regulatory Flexibility Analysis IRS—U.S. Internal Revenue Service IT—information technology LCA—Labor Condition Application MSA—Metropolitan Statistical Area NAFSA—National Association of Foreign Student Advisers NAICS—North American Industry Classification System NEPA—National Environmental Policy Act NPRM—notice of proposed rulemaking OEWS—Occupational Employment and Wage Statistics OFLC—Office of Foreign Labor Certification OMB—Office of Management and Budget OPQ—Office of Performance and Quality OPT—Optional Practical Training PRA—Paperwork Reduction Act of 1995 Pub. L.—Public Law PWD—prevailing wage determination RFA—Regulatory Flexibility Act of 1980 RIA—regulatory impact analysis SBA—U.S. Small Business Administration SCA—Service Contract Act Secretary—Secretary of Homeland Security SOC—Standard Occupational Classification STEM—Science, Technology, Engineering, and Math SVP—Specific Vocational Preparation UMRA—Unfunded Mandates Reform Act 1995 U.S.C.—United States Code USCIS—U.S. Citizenship and Immigration Services I. Executive Summary DHS is amending its regulations governing the H-1B cap selection process. This final rule implements a weighted selection process that will generally favor the allocation of H-1B visas to higher-skilled and higher-paid aliens, while maintaining the opportunity for employers to secure H-1B workers at all wage levels. This final rule follows a notice of proposed rulemaking (NPRM) issued on this topic on September 24, 2025, “Weighted Selection Process for Registrants and Petitioners Seeking to File Cap-Subject H-1B Petitions,” 90 FR 45986 (Sept. 24, 2025). A. Purpose and Summary of the Regulatory Action The purpose of this rule is to allow DHS to implement the numerical cap in a way that incentivizes employers to offer higher wages, or to petition for positions requiring higher skills and higher-skilled aliens, that are commensurate with higher wage levels. This weighted selection process will generally favor the allocation of H-1B visas to higher-skilled and higher-paid aliens, while maintaining the opportunity for employers to secure H-1B workers at all wage levels, to better serve the congressional intent for the H-1B program. Moreover, it will disincentivize abuse of the H-1B program to fill relatively lower-paid, lower-skilled positions, which is a significant problem under the present H-1B program. Through this rule, DHS is amending the process by which USCIS selects H-1B registrations for unique beneficiaries for filing of H-1B cap-subject petitions (or H-1B petitions for any year in which the registration requirement is suspended) to implement a weighted selection process generally based on each beneficiary's equivalent wage level. When random selection is required because USCIS receives more registrations (or petitions) than USCIS projects to be needed to meet the numerical allocations, USCIS will conduct a weighted selection among the registrations for unique beneficiaries (or petitions) received generally based on the highest Occupational Employment and Wage Statistics (OEWS) wage level that the beneficiary's proffered wage will equal or exceed for the relevant Standard Occupational Classification (SOC) code in the area(s) of intended employment. Under this process, registrations for unique beneficiaries or petitions will be assigned to the relevant OEWS wage level and entered into the selection pool as follows: registrations for unique beneficiaries or petitions assigned wage level IV will be entered into the selection pool four times, those assigned wage level III will be entered into the selection pool three times, those assigned wage level II would be entered into the selection pool two times, and those assigned wage level I will be entered into the selection pool one time. Each unique beneficiary will only be counted once toward the numerical allocation projections, regardless of how many registrations were submitted for that beneficiary or how many times the beneficiary is entered in the selection pool. As noted in the NPRM, although DHS is not codifying a severability clause in the regulatory text, DHS intends for the provisions of this rule to be severable from one another as well as severable from the registration requirement more broadly and the beneficiary-centric selection methodology. The absence of codified severability language is solely to avoid potential confusion within 8 CFR 214.2, which governs a wide range of nonimmigrant classifications beyond the H-1B program and already contains multiple other severability provisions. See 90 FR at 45996. B. Summary of Costs and Benefits BILLING CODE 9111-97-P ER29DE25.002 ER29DE25.003 ER29DE25.004 BILLING CODE 9111-97-C C. No Changes From the Notice of Proposed Rulemaking Following consideration of all public comments received on the NPRM, DHS is issuing this final rule as proposed in the NPRM, without modifications to the regulatory text. D. Implementation This rule will be effective in time for the FY 2027 registration season. The changes in this final rule will apply to all registrations (or petitions, in the event that registration is suspended), including those for the advanced degree exemption, submitted on or after the effective date of the final rule. The treatment of registrations and petitions filed prior to the effective date of this final rule will be based on the regulatory requirements in place at the time the registration or petition, as applicable, is properly submitted. DHS has determined that this manner of implementation best balances operational considerations with fairness to the public. II. Background A. Legal Authority The Secretary of Homeland Security (Secretary)'s authority for these regulatory amendments is found in various sections of the Immigration and Nationality Act (INA or the Act), 8 U.S.C. 1101 et seq., and the Homeland Security Act of 2002 (HSA), Public Law 107-296, 116 Stat. 2135, 6 U.S.C. 101 et seq. General authority for issuing this final rule is found in section 103(a) of the INA, 8 U.S.C. 1103(a), which authorizes the Secretary to administer and enforce the immigration and nationality laws and establish such regulations as the Secretary deems necessary for carrying out such authority, as well as section 102 of the HSA, 6 U.S.C. 112, which vests all of the functions of DHS in the Secretary and authorizes the Secretary to issue regulations. 1 Further authority for these regulatory amendments is found in: 1 Although several provisions of the INA discussed in this final rule refer exclusively to the “Attorney General,” such provisions are now to be read as referring to the Secretary of Homeland Security by operation of the HSA. See 6 U.S.C. 202(3), 251, 271(b), 542 note, 552(d), 557; 8 U.S.C. 1103(a)(1), (g), 1551 note; Nielsen v. Preap, 586 U.S. 392, 397 n.2 (2019); see also 6 U.S.C. 522 (“Nothing in this chapter, any amendment made by this chapter, or in section 1103 of Title 8, shall be construed to limit judicial deference to regulations, adjudications, interpretations, orders, decisions, judgments, or any other actions of the Secretary of Homeland Security or the Attorney General.”). • Section 101(a)(15)(H)(i)(b) of the INA, 8 U.S.C. 1101(a)(15)(H)(i)(b), which establishes the H-1B nonimmigrant classification; • Section 214(a)(1) of the INA, 8 U.S.C. 1184(a)(1), which authorizes the Secretary to prescribe, by regulation, the time and conditions of the admission of nonimmigrants; • Section 214(c)(1) of the INA, 8 U.S.C. 1184(c)(1), which, inter alia, authorizes the Secretary to prescribe how an importing employer may petition for nonimmigrant workers, including nonimmigrants described at section 101(a)(15)(H)(i)(b) of the INA, 8 U.S.C. 1101(a)(15)(H)(i)(b), as well as the form of the petition and the information that an importing employer must provide in the petition; • Section 214(g) of the INA, 8 U.S.C. 1184(g), which, inter alia, prescribes the H-1B numerical limitations, various exceptions to those limitations, and the period of authorized admission for H-1B nonimmigrants; • Section 214(i) of the INA, 8 U.S.C. 1184(i), which sets forth the definition and requirements of a “specialty occupation”; • Section 235(d)(3) of the INA, 8 U.S.C. 1225(d)(3), which authorizes “any immigration officer . . . to administer oaths and to take and consider evidence of or from any person touching the privilege of any alien or person he believes or suspects to be an alien to enter, reenter, transit through, or reside in the United States or concerning any matter which is material and relevant to the enforcement of [the INA] and the administration of [DHS]”; • Section 287(b) of the INA, 8 U.S.C. 1357(b), which authorizes the taking and consideration of evidence “concerning any matter which is material or relevant to the enforcement of [the INA] and the administration of [DHS]”; • Section 101(b)(1)(F) of the HSA, 6 U.S.C. 111(b)(1)(F), which provides that a primary mission of DHS is to “ensure that the overall economic security of the United States is not diminished by efforts, activities, and programs aimed at securing the homeland”; • Section 402 of the HSA, 6 U.S.C. 202, which charges the Secretary with “[e]stablishing and administering rules 2 . . . governing the granting of visas or other forms of permission . . . to enter the United States” and “[e]stablishing national immigration enforcement policies and priorities”; see also HSA sec. 428, 6 U.S.C. 236; and 2 Section 102(e) of the HSA, 6 U.S.C. 112(e), provides that “the issuance of regulations by the Secretary shall be governed by the provisions of chapter 5 of title 5, except as specifically provided in this chapter, in laws granting regulatory authorities that are transferred by this chapter, and in laws enacted after November 25, 2002.” • Section 451(a)(3) and (b) of the HSA, 6 U.S.C. 271(a)(3) and (b), transferring to USCIS the authority to adjudicate petitions for nonimmigrant status, establish policies for performing that function, and set national immigration services policies and priorities. B. Background on H-1B Registration The H-1B visa program allows U.S. employers to temporarily hire foreign workers to perform services in a specialty occupation, services related to a U.S. Department of War (DOW) cooperative research and development project or coproduction project, or services of distinguished merit and ability in the field of fashion modeling. See INA sec. 101(a)(15)(H)(i)(b), 8 U.S.C. 1101(a)(15)(H)(i)(b); Immigration Act of 1990, Public Law 101-649, sec. 222(a)(2), 104 Stat. 4978 (Nov. 29, 1990); 8 CFR 214.2(h). A specialty occupation is defined as an occupation that requires the (1) theoretical and practical application of a body of highly specialized knowledge, and (2) attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum qualification for entry into the occupation in the United States. See INA sec. 214(i)(l), 8 U.S.C. 1184(i)(l). Congress has established limits on the number of foreign workers who may be granted initial H-1B nonimmigrant visas or status each fiscal year (FY) (commonly known as the “cap”). See INA sec. 214(g), 8 U.S.C. 1184(g). The total number of foreign workers who may be granted initial H-1B nonimmigrant status during any fiscal year may not exceed 65,000. See INA sec. 214(g)(1)(A), 8 U.S.C. 1184(g)(1)(A). Certain petitions are exempt from the 65,000 numerical limitation. 3 See INA secs. 214(g)(5) and (7), 8 U.S.C. 1184(g)(5) and (7). The annual exemption from the 65,000 cap for H-1B workers who have earned a qualifying U.S. master's or higher degree may not exceed 20,000 foreign workers. See INA sec. 214(g)(5)(C), 8 U.S.C. 1184(g)(5)(C). 3 Exempt petitions are petitions for (1) employment (or an offer of employment) at an institution of higher education or a related affiliated nonprofit entity, (2) employment (or an offer of employment) at a nonprofit research organization or a government research organization, or (3) H-1B workers who have earned a qualifying U.S. master's degree or higher degree. Also exempt are those petitions for beneficiaries who have previously been counted under the cap, unless eligible for a full 6-years of authorized admission when the petition is filed, and who seek to change jobs or extend their stay during their 6-year period of authorized admission, and those exempt from the 6-year period of authorized admission limitation based on section 104(c) or 106(a) and (b) of the American Competitiveness in the Twenty-First Century Act (AC21), Public Law 106-313, 114 Stat. 1254 (Oct. 17, 2000), as amended by section 11030A of the 21st Century Department of Justice Appropriations Authorization Act, Public Law 107-273, 116 Stat. 1758 (2002). To manage the annual cap, USCIS used a random selection process in years of high demand to determine which petitions were selected toward the projected number of petitions needed to reach the annual H-1B numerical allocations. In order to better manage the selection process, DHS created a registration requirement for H-1B cap-subject petitions, which was first implemented in 2020 for the FY 2021 cap season. Through issuance of a final rule in 2019, “Registration Requirement for Petitioners Seeking To File H-1B Petitions on Behalf of Cap-Subject Aliens,” DHS developed a new way to administer the H-1B cap selection process to streamline processing and provide overall cost savings to employers seeking to file H-1B cap-subject petitions. See 84 FR 888 (Jan. 31, 2019). Under the current registration process, prospective petitioners (also known as registrants) that seek to employ H-1B cap-subject workers must first submit a registration for each requested worker. The H-1B selection process is then run on properly submitted electronic registrations. Only those with valid selected registrations are eligible to file H-1B cap-subject petitions. 8 CFR 214.2(h)(8)(iii)(A)( 1 ). In February 2024, DHS implemented a beneficiary-centric selection process for H-1B registrations to better ensure each beneficiary will have the same chance of being selected, regardless of the number of registrations submitted on his or her behalf, among other integrity measures. 89 FR 7456 (Feb. 2, 2024). Under this beneficiary-centric selection process, registrations are counted based on the number of unique beneficiaries who are registered. 8 CFR 214.2(h)(8)(iii)(A)( 4 ). Each unique beneficiary is counted once toward the random selection, regardless of how many registrations are submitted for that beneficiary. Id. A prospective petitioner whose registration is selected is eligible to file an H-1B cap-subject petition based on the selected registration during the associated filing period. 8 CFR 214.2(h)(8)(iii)(A)( 1 ). C. Need for Regulatory Reform Congress provided DHS with the authority to better ensure a fair, orderly, and efficient allocation of H-1B cap numbers based on reasoned decision making, including consideration of the overall statutory scheme and purpose of the classification: the selection of highly skilled and highly paid nonimmigrants in the United States while protecting the wages, working conditions, and job opportunities of U.S. workers. Congressional intent behind creating the H-1B program was, in part, to help U.S. employers fill labor shortages in positions requiring highly skilled or highly educated workers. 4 A key goal of the program at its inception was to help U.S. employers obtain the temporary employees they need to meet their business needs to remain competitive in the global economy. 5 To address legitimate countervailing concerns of the adverse impact foreign workers could have on U.S. workers, Congress enacted a number of measures intended to protect U.S. workers, including the annual numerical limitations. Congress was concerned that a surplus of foreign labor could depress wages for all workers in the long run and recognized the cap as a means of “continuous monitoring of all admissions.” 6 4 See H.R. Rep. 101-723(I) (1990), as reprinted in 1990 U.S.C.C.A.N. 6710, 6721. 5 See Bipartisan Policy Center, Immigration in Two Acts, at 7 (Nov. 2015), https://bipartisanpolicy.org/wp-content/uploads/2019/03/BPC-Immigration-Legislation-Brief.pdf, citing H.R. Rep. 101-723(I) supra note 10 at 6721 (“At the time [1990], members of Congress were also concerned about U.S. competitiveness in the global economy and sought to use legal immigration as a tool in a larger economic plan, stating that `it is unlikely that enough U.S. workers will be trained quickly enough to meet legitimate employment needs, and immigration can and should be incorporated into an overall strategy that promotes the creation of the type of workforce needed in an increasingly global economy.' ”). 6 See H.R. Conf. Rep. 101-955, at 126 (1990), as reprinted in 1990 U.S.C.C.A.N. 6784, 6790-91. As noted above, USCIS has used a random selection process in years of high demand to determine which registrations (or petitions, as applicable) are selected toward the projected number needed to reach the annual H-1B numerical allocations. While the current random selection of petitions or registrations is reasonable, DHS believes it is neither the optimal, nor the exclusive method of selecting registrations or petitions toward the numerical allocations when more registrations or petitions, as applicable, are simultaneously submitted than projected as needed to reach the numerical allocations. 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. 7 7 See H.R. Rep. 101-723(I) (1990), as reprinted in 1990 U.S.C.C.A.N. 6710, 6721 (stating “The U.S. labor market is now faced with two problems that immigration policy can help to correct. The first is the need of American business for highly skilled, specially trained personnel to fill increasingly sophisticated jobs for which domestic personnel cannot be found and the need for other workers to meet specific labor shortages.”). DHS believes a better reasoned policy, consistent with the intent of the H-1B statutory scheme, is to utilize the numerical cap in a way that incentivizes a U.S. employer's recruitment of beneficiaries for positions requiring the highest skill levels within the visa classification or otherwise earning the highest wages in an occupational classification and area of intended employment, which generally correlate with higher skill levels. Put simply, because demand for H-1B visas has exceeded the annual supply for more than a decade, 8 DHS prefers that simultaneously submitted registrations for cap-subject H-1B visas be selected in a manner that favors beneficiaries earning the highest wages relative to their SOC codes and area(s) of intended employment. 8 Total Number of H-1B Cap Registration Submissions and Selections, FY 2021-FY 2025, USCIS Office of Performance and Quality (OPQ), data queried 3/2025, TRK #17518; Total Number of H-1B Cap-Subject Petitions Submitted, FY 2016-FY 2020, USCIS SCOPS, June 2019. See also Jill H. Wilson, Congressional Research Service, Temporary Professional Foreign Workers: Background, Trends, and Policy Issues (June 9, 2022), https://www.congress.gov/crs-product/R47159. While DHS prefers that cap-subject H-1B visas be allocated in a manner that favors beneficiaries earning the highest wages, DHS also recognizes the value in maintaining the opportunity for employers to secure H-1B workers at all wage levels. In this respect, this final rule differs from the wage-based selection rule that DHS proposed and finalized in 2020 and 2021, respectively. 9 Although the 2021 H-1B Selection Final Rule was subsequently vacated 10 and then withdrawn, 11 it would have ranked and selected registrations generally based on the highest equivalent prevailing wage level, as opposed to selecting by unique beneficiary and assigning a weight to them as in this finalized selection process. The 2021 H-1B Selection Final Rule was expected to result in the likelihood that registrations for level I wages would not be selected, as well as a reduced likelihood that registrations for level II would be selected. 86 FR 1676, 1724 (Jan. 8, 2021). Although DHS believes the selection process finalized under the 2021 H-1B Selection Final Rule was a reasonable approach to facilitate the admission of higher-skilled or higher-paid workers, DHS believes that rule did not capture the optimal approach because it effectively left little or no opportunity for the selection of lower wage level or entry level workers, some of whom may still be highly skilled. Unlike the 2021 H-1B Selection Final Rule, under this final rule, USCIS will assign a weight to—rather than rank and select—registrations for each unique beneficiary generally based on the corresponding OEWS wage level. 9 See “Modification of Registration Requirement for Petitioners Seeking To File Cap-Subject H-1B Petitions,” 85 FR 69236 (Nov. 2, 2020); “Modification of Registration Requirement for Petitioners Seeking To File Cap-Subject H-1B Petitions,” 86 FR 1676 (Jan. 8, 2021). 10 See Chamber of Commerce of the U.S. v. DHS, No. 4:20-cv-07331, 2021 WL 4198518 (N.D. Cal. Sept. 15, 2021) (vacating the rule as improperly issued but not reaching the merits of plaintiffs' alternative arguments). 11 Following several months of litigation, on September 15, 2021, the court vacated the rule and remanded the matter to DHS and DHS subsequently withdrew the rule. On December 22, 2021, DHS issued a final rule to withdraw the final rule published on January 8, 2021, because that rule had been vacated by a Federal district court. “Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject H-1B Petitions, Implementation of Vacatur,” 86 FR 72516 (Dec. 22, 2021). By engaging in a wage-level based weighting of registrations for unique beneficiaries, DHS will 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. 12 Ultimately, this final rule will incentivize employers to offer higher wages or higher skilled positions to H-1B workers and disincentivize the existing widespread use of the H-1B program to fill lower paid or lower skilled positions, without effectively precluding beneficiaries with lower wage levels or entry level positions. 13 Facilitating the admission of higher-skilled workers “would benefit the economy and increase the United States' competitive edge in attracting the `best and the brightest' in the global labor market,” consistent with the goals of the H-1B program. 14 12 See Daniel Costa & Ron Hira, Economic Policy Institute, H-1B Visas and Prevailing Wage Level (May 4, 2020), https://www.epi.org/publication/h-1b-visas-and-prevailing-wage-levels/ (pointing to data that “all H-1B employers, but especially the largest employers, use the H-1B program either to hire relatively lower-wage workers (relative to the wages paid to other workers in their occupation) who possess ordinary skills or to hire skilled workers and pay them less than the true market value”); George Fishman, Center for Immigration Studies, Elon Musk is Right about H-1Bs (Jan. 9, 2025), https://cis.org/Report/Elon-Musk-Right-about-H1Bs (noting the benefit of giving preference to prospective H-1B workers who are “the best and brightest (those promised the highest salaries)”); Norm Matloff, Barron's, Where are the `Best and Brightest?' (June 8, 2013), https://www.barrons.com/articles/SB50001424052748703578204578523472393388746 (“The data show that most of the foreign tech workers are ordinary folks doing ordinary work.”); Norman Matloff, Center for Immigration Studies, H-1Bs: Still Not the Best and the Brightest (May 12, 2008), https://cis.org/Report/H1Bs-Still-Not-Best-and-Brightest (presenting “data analysis showing that the vast majority of the foreign workers—including those at most major tech firms—are people of just ordinary talent, doing ordinary work.”); Adam Ozimek, Connor O'Brien, & John Lettieri, Economic Innovation Group, Exceptional by Design: How to Fix High-Skilled Immigration to Maximize American Interests (Jan. 2025), https://eig.org/wp-content/uploads/2025/01/Exceptional-by-Design.pdf (“Wages are a clear expression of the value firms expect a worker to contribute, yet the H-1B gives no preference to workers with higher salary offers.”). 13 See Daniel Costa & Ron Hira, Economic Policy Institute, H-1B Visas and Prevailing Wage Level (May 4, 2020), https://www.epi.org/publication/h-1b-visas-and-prevailing-wage-levels/. 14 See Muzaffar Chishti & Stephen Yale-Loehr, Migration Policy Institute, The Immigration Act of 1990: Unfinished Business a Quarter-Century Later (July 2016), https://www.migrationpolicy.org/sites/default/files/publications/1990-Act_2016_FINAL.pdf (“Sponsors of [the Immigration Act of 1990, which created the H-1B program as it exists today,] believed that facilitating the admission of higher-skilled immigrants would benefit the economy and increase the United States' competitive edge in attracting the `best and the brightest' in the global labor market.”). This rule is consistent with the Presidential Proclamation 10973 of September 19, 2025, “Restriction on Entry of Certain Nonimmigrant Workers” (“H-1B Proclamation”), which directed the Secretary of Homeland Security to initiate a rulemaking to prioritize the admission as nonimmigrants of high-skilled and high-paid aliens, consistent with INA sections 101, 212, and 214 of the INA, 8 U.S.C. 1101, 1182, and 1184. 90 FR 46027 (Sept. 24, 2025). As noted in the H-1B Proclamation, the H-1B nonimmigrant visa program was created to bring highly skilled temporary workers into the United States, but the program has been deliberately exploited to bring in lower-paid, lower-skilled workers to the detriment of U.S. workers. 15 Further, many employers, particularly employers in certain sectors, have abused the current H-1B framework to artificially suppress wages, resulting in a disadvantageous labor market for U.S. citizens, while at the same time making it more difficult to attract and retain the highest skilled subset of temporary workers. 15 Throughout this rule DHS uses the term “U.S. workers” but notes that the Proclamation uses the term “American workers.” DHS considers these terms synonymous for purposes of this rule. DHS believes that the current random selection of registrations (or petitions, as applicable) has contributed to the systematic abuse of the H-1B program as described in the H-1B Proclamation. Despite improvements DHS has made over the years to improve the integrity of the H-1B registration process and the H-1B program overall, companies continue to exploit the current legal framework to obtain a pool of relatively low-wage workers that are detrimental to U.S. workers' wages, working conditions, and job opportunities. This final rule will help reverse this trend and help the program meet its original goals of attracting highly skilled foreign workers while better protecting the wages, working conditions, and job opportunities of U.S. workers. III. Response to Public Comments on the Proposed Rule In response to the proposed rule, DHS received 2,731 comments during the 30-day period for public comments on the NPRM. DHS received additional comments related to the associated information collections during the remainder of the 60-day period for public comments in accordance with the Paperwork Reduction Act. Commenters included individuals (including U.S. workers), companies, law firms, professional organizations, advocacy groups, nonprofit organizations, universities, healthcare providers, and trade and business associations. Some commenters expressed support for the rule or offered suggestions for improvement. Some expressed general opposition to the rule and some offered alternatives. For some of the public comments, DHS could not ascertain whether the commenter supported or opposed the proposed rule. DHS has reviewed all of the public comments received in response to the NPRM that were submitted in accordance with the instructions contained in the NPRM during the comment period. In this final rule, DHS has responded to public comments relevant to the NPRM and has addressed the significant issues raised therein. DHS's responses are grouped by subject area, with a focus on the most common issues and suggestions raised by commenters. A. Support for the Rule and DHS Justifications 1. General Support for the Rule Comment: Multiple commenters expressed general support for the rule. Other commenters explained their support in general terms that mentioned: promoting a more merit-based H-1B visa system; expanding employment options for U.S. citizens; promoting a more highly skilled workforce; providing an effective mechanism for weighted selection using wages across different locations; and promoting transparency in selection criteria. Some commenters said the proposed approach would better align with the H-1B program's purpose by attracting top global talent and/or supporting innovation and economic growth in the United States while also reducing wage-based exploitation. Commenters predicted the new selection process would strengthen the U.S. economy and enhance the United States' competitiveness. Multiple commenters stated that the new selection process would improve program integrity. Commenters generally noted that the wage-based selection process would improve both the integrity of the registration program and the H-1B program overall. Some commenters praised DHS's efforts to protect the registration selection process against gaming by employers. Response: DHS agrees that this rule will improve program integrity and will better ensure that the H-1B cap selection process favors relatively higher-skilled, higher-valued, or higher-paid foreign workers, consistent with the congressional intent of helping U.S. employers hire highly skilled aliens to address gaps in the U.S. workforce. DHS agrees with the commenters' statements that the weighted selection process implemented by this rule will expand employment prospects for U.S. citizens, support innovation, encourage skill development, reduce wage-based exploitation, promote integrity and transparency, and help to strengthen the economy. By facilitating the admission of highly skilled, highly paid H-1B workers, this rule helps the United States attract more highly skilled workers in the global labor market, ultimately enhancing U.S. competitiveness. 2. Protecting U.S. Workers and Wages Comment: Many commenters supported the proposed rule, reasoning that it would address concerns about the current H-1B program's harmful effects on U.S. workers. Commenters criticized the wage undercutting and wage suppression allowed by the current H-1B cap selection process. Some commenters shared their personal observations about how they, their colleagues, or U.S. workers have been harmed by companies that exploit the H-1B program to bring in large numbers of lower-skilled, lower-paid foreign workers. Multiple commenters predicted that the new H-1B selection process would benefit U.S. workers. Commenters emphasized that the skill- and wage-based selection criteria would promote fairness; discourage fraudulent practices; encourage prospective beneficiaries to pursue higher-paying, legitimate employment opportunities; and better complement the U.S. labor market. Commenters remarked that the new system would raise wages to more accurately reflect market demand for needed skills. Another noted the rise of artificial intelligence (AI) and the need to protect job opportunities for U.S. workers and graduates. Some commenters remarked that this rule would not only help U.S. citizens, but also lawful permanent residents and legal immigrant workers whose job opportunities have been negatively impacted by low-skill, low-wage H-1B workers. Many commenters predicted that the new selection process would encourage the hiring of U.S. workers by disincentivizing information technology (IT) staffing companies from hiring cheap, foreign labor. Many commenters said they support efforts to reform the H-1B registration process and expressed concern about IT consulting companies that hire lower-skilled, lower-paid foreign workers who displace U.S. workers. Commenters expressed criticism of the way some IT staffing companies can misuse or abuse the system, whether through loopholes or illegal practices. Some commenters cited data showing that currently 80% of H-1B visas are for workers in wage levels I and II, a statistic they tied to lower wages in affected industries. Response: DHS agrees that this rule will reduce problems with the H-1B program, which companies have been systematically exploiting to bring in large numbers of lower-skilled, lower-paid foreign workers to the detriment of U.S. workers. In particular, U.S. workers in computer-related fields have been significantly harmed by the prominent manipulation of the H-1B program by IT or outsourcing firms. 16 This rule will incentivize employers to use the H-1B program to primarily fill relatively higher-paid, higher-skilled positions to supplement, rather than replace, U.S. workers. Prioritizing registrations or petitions, as applicable, on the basis of equivalent wage levels will help restore the congressional intent for the program of helping U.S. employers fill labor shortages in positions requiring highly skilled and/or highly educated workers. 16 See “Restriction on Entry of Certain Nonimmigrant Workers,” 90 FR 46027 (Sept. 24, 2025 ). See also Daniel Costa & Ron Hira, Economic Policy Institute, H-1B Visas and Prevailing Wage Level (May 4, 2020), https://www.epi.org/publication/h-1b-visas-and-prevailing-wage-levels . DHS agrees that a decrease in the hiring of lower-paid foreign labor will encourage U.S. employers to hire available and qualified U.S. workers, potentially improving the wages, working conditions, and job opportunities for U.S. workers, particularly for certain positions and industries that have seen wage suppression or stagnation due to lower-paid H-1B workers. The weighted selection process finalized in this rule is expected to result in a marked decrease in registrations (or petitions, as applicable) being selected for workers who will be paid a level I corresponding wage, with a greater percentage of total selected registrations or petitions being for beneficiaries who will be paid a level III or level IV corresponding wage. DHS also agrees this rule will benefit lawful permanent residents and other legal immigrant workers who have been similarly harmed by lower-paid H-1B workers. 3. Positive Impacts on Entry-Level Workers and Recent Graduates Comment: Many commenters said that the proposed rule would alleviate competition and provide more entry-level positions for U.S. workers. Citing previously published DHS data indicating that the “number of wage level I petitions will decrease by 10,099 annually,” a commenter predicted that this decrease would encourage petitioners to seek out U.S. workers for these entry-level positions. One commenter predicted that the new rule will positively impact early career professionals, both U.S. workers and H-1B nonimmigrants, by raising wages. Many commenters remarked that this rule would help U.S. college students and other recent graduates, reasoning that the new selection process will help increase their chances of gainful employment and decrease competition against lower-paid foreign workers. Commenters also specifically noted that the proposed weighted selection process would offer some improvements for U.S. graduates in science, technology, engineering, and math (STEM) fields and other U.S. workers who are just starting out their IT careers. Some commenters noted the significant challenges faced by current U.S. graduates seeking work in the IT or STEM fields and stated that this rule would encourage U.S. students to pursue STEM training and positions. Response: DHS agrees that this rule will help to better protect the wages, working conditions, and job opportunities of U.S. workers, including U.S. college students and recent graduates. Employers that might have petitioned for cap-subject H-1B workers to fill relatively lower-paid, lower- skilled positions may be incentivized to hire available and qualified entry-level U.S. workers for those positions as a result of this rule. DHS also agrees that this rule will offer improvements for U.S. students and graduates in STEM fields. As stated in the H-1B Proclamation, abuse of the H-1B program is creating disincentives for future U.S. workers to choose STEM careers. U.S. college graduates in some STEM fields are facing high unemployment rates as compared to graduates with other majors. 17 90 FR 46027 (Sept. 24, 2025). Employers have abused the H-1B program to artificially suppress wages, resulting in a disadvantageous labor market for U.S. citizens and other legal workers, particularly in STEM fields. Id. 17 Federal Reserve Bank of New York, The Labor Market for Recent College Graduates, https://nyfed.org/collegelabor (last updated Aug. 1, 2025) (data from 2023). 4. Positive Impacts on International Students and New Graduates Comment: Several commenters expressed appreciation for the proposed rule, stating that it would be greatly beneficial to international students and graduates from U.S. universities who are highly skilled or have job offers at high wage levels. These commenters expressed frustration at not having been selected in several previous H-1B registration seasons despite earning level IV wages, saying that their chances of selection would have been much higher had a wage-based selection process been in place. A commenter similarly noted that a weighted selection will be more merit-based and favorable to students who invested in a U.S. education and have legitimate job offers, compared to the current random selection process which allows “many fake registrations” that “distort the odds.” A commenter said the new rule would benefit international students graduating with master's degrees and Ph.D.'s. Response: DHS agrees that this rule will be greatly beneficial to international students who are highly skilled and have job offers with wages that correspond to a higher wage level, as the rule will increase their chances of being selected in any future H-1B lottery relative to their chance in the current randomized selection process. DHS agrees that this rule could be beneficial to aliens who have recently completed a master's or doctoral program and are seeking to enter the workforce. For these aliens, this rule will further increase their chance of being selected in the H-1B lottery relative to their chance in the current randomized selection process, to the extent that such aliens secure job offers with salaries that correspond to higher wage levels. It should also be noted that recent graduates with master's or higher degrees from U.S. institutions of higher education already benefit from the existing advanced degree exemption and cap selection order. 5. Positive Impacts on Companies and the Economy Comment: Commenters articulated several ways that the proposed rule would benefit U.S. companies and the economy. For example, a commenter expressed support for the proposed rule and suggested it would encourage companies to hire the most qualified person for the job, which in turn helps companies succeed and improves the country's economy. Commenters stated that foreign professionals earning higher wages, in addition to contributing directly to innovation, may add more to the U.S. economy through gross domestic product (GDP), tax revenue, innovation output per capita, and consumer spending. Some commenters mentioned ways this rule would help certain types of employers. For instance, a few commenters stated that the proposed rule would help start-ups hire and retain aliens with needed skills, while the current random selection process results in startups losing critical employees because most registrations go to other companies like consulting companies or outsourcing firms. A commenter stated that high-wage positions typically correspond to roles in cutting-edge sectors, such as AI, cybersecurity, semiconductor design, and advanced manufacturing, and stated that this rule would help companies attract and retain top global talent in these fields. A few commenters said the new weighted selection process would promote hiring of U.S. workers in industries key to national security. Another commenter praised the rule for supporting U.S. workers and said the United States should focus on educating and developing doctors from within its own population rather than recruiting doctors from other countries. Response: DHS agrees that the weighted selection process implemented by this rule will benefit some U.S. companies by facilitating the admission of highly skilled, highly paid workers, attracting the best and brightest in the global labor market. Unlike the current random selection process, which results in a higher proportion of lower wage and lower skilled H-1B workers, this rule will benefit companies of all types, including startups and those in critical sectors, that are seeking to hire highly skilled workers with wages that correspond to a higher wage level. These workers are more likely to spur innovation and help their employers succeed, ultimately benefiting the U.S. economy, whether directly through taxes paid, consumer spending, and contributions to corporate earnings, or indirectly through promoting growth in key industries, including those related to national security. Finally, DHS agrees that the new weighted selection process will help to better protect the wages, working conditions, and job opportunities for U.S. workers, including those in medicine and health-related fields. B. Opposition to the Rule and Policy Objections 1. General Opposition to the Rule Comment: Some commenters opposed the rule based on general policy concerns, stating that the rule would, for example, be unfair, produce uncertainty for businesses, reduce diversity and inclusiveness in the workplace, and “undermine[ ] the principles of equal opportunity that should guide immigration policy.” Other commenters generally asserted that the rule would weaken American competitiveness or harm innovation in the United States. Other commenters generally described the benefits of the H-1B program ( e.g., that it allows companies to invest in domestic facilities, create additional jobs for U.S. employees, fill gaps in technical and scientific areas where shortages exist, and hire foreign workers with specialized skills which complement those of U.S. workers) and claimed that this rule is not needed. Response: As discussed in greater detail in response to more specific comments later in this preamble, DHS disagrees with these commenters that the rule will result in the asserted harms; moreover, to the extent that harm may occur in any individual case, DHS believes that on balance, this approach is more likely to support the purposes of the H-1B program and the national interest. In addition, DHS disagrees that the rule is not needed, as it is well documented that the H-1B program has been deliberately and systematically exploited. The current random selection process has contributed to the ongoing exploitation of the H-1B program to benefit certain companies in certain sectors, while crowding out other companies and legitimate job seekers who have unsuccessfully sought to participate in the H-1B program. As noted in the H-1B Proclamation, the H-1B program has been deliberately exploited to replace, rather than supplement, U.S. workers with lower-paid, lower-skilled labor. 90 FR 46027 (Sept. 24, 2025). The large-scale replacement of U.S. workers through systemic abuse of the program has undermined both our economic and national security. 90 FR 46027 (Sept. 24, 2025). These results are contrary to the purpose of the H-1B program. 2. Fairness and Equal Opportunity Concerns Comment: Many commenters expressed concerns about the fairness and equity of the proposed weighted selection process with some commenters saying the rule goes against U.S. values of opportunity and fairness. Other commenters stated that the current random selection process, though imperfect, provides all qualified applicants with an equal chance regardless of employer size, education level, or industry. The commenters stated that a weighted selection process would favor larger corporations, well-funded petitioners, and candidates with advanced U.S. degrees, unfairly disadvantaging skilled workers with comparable or greater expertise but different academic or geographic backgrounds. Another commenter remarked that one of the most echoed sentiments online is that the wage-weighted rule “only helps the rich get richer” by linking selection chances to salary, which favors those from privileged backgrounds and high-paying industries. Some commenters stated that the proposed rule would create a “pay-to-play” system. Another commenter stated that it is not fair that people with talent but limited resources would be ignored because of this proposal, questioning when money became the main priority over skills and potential. Another commenter remarked that companies may “lowball” their employees in order to control their spending on H-1B visas, leading to more unfair treatment. Another commenter stated that the proposed rule would distort fair competition for labor and would discourage legitimate participation in the H-1B program. Response: DHS believes that the ongoing exploitation of the H-1B program—to the detriment of U.S. workers and legitimate employers and job seekers who have been crowded out of the program—is contrary to the principles of fairness and equal opportunity. The current random selection process is not fair to U.S. workers whose wages may be adversely affected by an influx of relatively lower-paid H-1B workers, or to U.S. employers who have sought to petition for foreign workers at higher OEWS prevailing wage levels and are not selected. Regarding the concern about employers “lowballing” their employees to control costs on H-1B visas, DHS believes that as a result of this rule employers may choose to offer a higher wage to a prospective beneficiary whose skill level they value and who they wish to retain. Additionally, this rule may offer highly skilled H-1B workers greater leverage in negotiating for a higher salary, which in turn could encourage competition for labor among petitioners seeking similarly qualified workers. DHS does not view the weighted selection process as a “pay-to-play” system, but rather a process that attracts the best and the brightest, increases the chance of selection for those who will be paid wages at higher corresponding wage levels, and disincentives petitioning employers from offering wages at the lower corresponding wage levels. As stated throughout the NPRM, DHS believes that salary generally is a reasonable proxy for skill level. 18 The purpose of this rule is to implement the numerical cap in a way that will generally favor the allocation of H-1B visas to higher-skilled and higher-paid aliens, while maintaining the opportunity for employers to secure H-1B workers at all wage levels. DHS believes this approach serves congressional intent for the H-1B program more faithfully than the current random selection process. DHS believes that this rule appropriately balances the interests of U.S. workers with the interests of petitioning employers and the alien workers they seek to employ as H-1B nonimmigrants. 18 See “Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program,” 76 FR 3452, 3453 (Jan. 19, 2011) (it is a “largely self-evident proposition that workers in occupations that require sophisticated skills and training receive higher wages based on those skills.”); Daniel Costa & Ron Hira, Economic Policy Institute, H-1B Visas and Prevailing Wage Level (May 4, 2020), https://www.epi.org/publication/h-1b-visas-and-prevailing-wage-levels . (“Specialized skills should command high wages; such skills are typically a function of inherent capability, education level, and experience. It would be reasonable to expect that these workers should receive wages higher than the median wage.”). Comment: Some commenters expressed concern that the proposed weighted selection process would complicate the registration selection process by creating uncertainty, complexity, and unfair bias. The commenters said that the weighting process would make outcomes harder to understand and undermine trust in the lottery, compared to the current random lottery which is transparent and simple to understand. A commenter likewise asserted that a “fundamental flaw” with the proposed rule's approach is that it retains the elements of uncertainty and randomness, such that someone being offered a $300,000 salary, for example, would have no certainty of winning the weighted lottery. Another commenter said that the rule adds uncertainty and makes workforce planning less predictable, thus making the H-1B program impractical to use. Response: DHS disagrees with these commenters that the weighted selection process creates uncertainty and unpredictability. To the contrary, this rule will increase certainty and predictability by increasing the chances that a registration for a highly skilled, highly paid alien will be selected in the selection process. Under the current system, the chance that any particular beneficiary is selected in the lottery is just under 30 percent, regardless of how highly skilled that beneficiary may be. These low chances of selection increase uncertainty for all beneficiaries. In contrast, under this final rule the chances of selection for a beneficiary weighted at a level IV wage will increase to over 61 percent and a beneficiary weighted at a level III wage will increase to over 45 percent. While the final rule retains some degree of uncertainty because it retains an element of randomness, DHS believes it is important to retain these aspects of the lottery. As stated in the NPRM, DHS believes it is optimal to increase the chances of selection for highly skilled aliens while maintaining the opportunity for employers to secure H-1B workers at all wage levels. DHS disagrees that the weighted selection process finalized in this rule will complicate the H-1B registration selection process or make outcomes harder to understand. USCIS is fully prepared to implement the weighted selection process from an operational and technical perspective in time for the upcoming H-1B cap season. DHS believes that the public has received sufficient notice of the weighted selection process and that the parameters of the process have been made clear. Finally, DHS disagrees that the weighted selection process undermines trust in the H-1B cap selection process. As previously described, the prevalent and systematic abuse of the current H-1B program undermines public trust. DHS believes that the new weighted selection process will restore trust in the H-1B program by returning the program to its original intended purpose of helping U.S. employers fill labor shortages in positions requiring highly skilled or highly educated workers while protecting the wages, working conditions, and job opportunities of U.S. workers, rather than allowing the continued abuse of the H-1B program to displace and otherwise harm U.S. workers. 3. Negative Impacts on Companies, the Workforce, and the Economy Comment: Several commenters asserted that H-1B professionals drive innovation, productivity growth, and entrepreneurship. Some commenters addressed the contributions of international students to innovation and economic growth and said that limiting their job opportunities would undermine such growth. Other commenters specified that startups and small businesses are significant drivers of innovation and economic growth in the United States, and limiting their access to international talent could stifle such innovation and entrepreneurship. Other commenters said that innovation and breakthroughs often come from early-career professionals, startups, and research institutions that typically cannot compete with the salaries of larger, established companies. Another commenter stated that startups rely on the H-1B program to attract talented workers who possess “niche expertise,” and that this rule will make the H-1B program more expensive and difficult to use, and ultimately limit the growth of U.S. tech innovation and global leadership. Response: DHS disagrees that the rule will stifle innovation, economic growth, and global leadership. Rather than limiting access to international talent, DHS believes that this rule will facilitate employers of all types and sizes to attract and retain highly skilled and highly paid aliens. This rule will help the United States to attract the best and brightest workers by increasing the chance of selection for highly skilled, highly paid aliens who are more likely to spur innovation and make significant contributions to their employers and industry, while also better protecting the wages, working conditions, and job opportunities of U.S. workers. Additionally, this rule does not treat people who work for startups or small-sized entities differently than those who work for other larger companies. While DHS recognizes that some startups and small businesses may operate on smaller margins compared to other companies, if an employer values a beneficiary's work and the unique qualities the beneficiary possesses, the employer could offer a higher wage than required by the prevailing wage level to reflect that value. DHS recognizes that this could result in increased costs for a business, however, DHS believes that the tradeoff of having a greater chance to recruit or retain talented employees may offset these increased costs. If a company is unable to pay an employee a higher wage for a greater chance of selection, they could then try to find a substitute U.S. worker. This rule, by weighting selection, allows employers seeking workers at any wage level to have an opportunity for selection, such that they are not precluded from participating in the program solely because they are unable to pay a wage that corresponds to a higher wage level. Comment: Commenters claimed that this rule would result in companies outsourcing more work overseas, directly contrary to the intent of this rule. Commenters remarked that employers who depend on entry-level talent would either cut back on hiring or outsource jobs abroad, reducing job creation within the United States. Some commenters specifically stated that the proposed rule would result in IT companies replacing onsite H-1B workers with lower-paid offshore resources, with some commenters remarking that this would be an additional way to undercut U.S. workers' wages by paying significantly lower salaries to offshore employees. A manufacturing association stated that in industries that cannot meet their labor force needs domestically, if companies cannot use the H-1B program to address shortages, employers may be incentivized to move production and workforce positions offshore. Another commenter noted that their industry will be unable to substitute lost global talent with U.S. workers who still need training and education, meaning that changes to the H-1B program will leave critical positions unfilled, slowing innovation and overall job growth. This same commenter went on to state that research from the Economic Innovation Group and George Mason University shows that restrictions on H-1B visas drives companies to offshore work or expand operations abroad, undermining the goal of supporting U.S. workers. Response: DHS disagrees that this rule will cause employers to outsource more jobs or move operations to other countries. While DHS acknowledges this rule may impose some costs to individual employers, the commenters do not address the countervailing impact on those employers benefited by this rule, including those U.S. employers offering level III and IV wages that will have higher chances of selection, or U.S. employers that have historically been squeezed out of the H-1B lottery that will likely see an increased chance to participate in the H-1B program. DHS believes that this rule, instead, will facilitate the admission of higher-skilled workers, which will benefit the economy and increase the United States' competitive edge in attracting the best and the brightest in the global labor market, consistent with the goals of the H-1B program. DHS is not persuaded that U.S. companies would rather incur the time and expense to move their operations abroad instead of increasing their hiring of U.S. workers, particularly for entry level positions where U.S. workers have been replaced with lower-paid, lower-skilled foreign labor. DHS believes that U.S. employers are more likely to change their hiring practices in the United States, rather than offshoring work abroad, as evidenced by news articles highlighting how more and more companies have signaled their intent to increase their investment in America and hire more U.S. workers rather than to rely on foreign workers. 19 Likewise, DHS is not persuaded by the research cited by a commenter concluding that H-1B “visa restrictions lead to offshoring.” 20 This analysis primarily discussed “visa restrictions” in terms of companies unable to hire H-1B workers due to the statutory 65,000 visa cap and not because they were not selected “by pure `luck' of the H-1B lottery process.” However, this rule does not restrict the number of H-1B visas available under the statutory cap, nor does it preclude any company from selection in the H-1B cap selection process. 19 See, e.g., The White House, TRUMP EFFECT: A Running List of New U.S. Investment in President Trump's Second Term (Aug. 15, 2025), https://www.whitehouse.gov/articles/2025/08/trump-effect-a-running-list-of-new-u-s-investment-in-president-trumps-second-term/; Forbes, International Companies Bet Big On America: A New Wave Of US Jobs (Mar. 31, 2025), https://www.forbes.com/sites/jackkelly/2025/03/31/international-companies-bet-big-on-america-a-new-wave-of-us-jobs/; Praveen Paramasivam, Reuters, India's Tata Tech to hire more locals in US as Trump cracks down on immigration (Oct. 22, 2025), https://www.reuters.com/world/india/indias-tata-tech-hire-more-locals-us-trump-cracks-down-immigration-2025-10-23/; Craig Hale, Techradar Pro, Meta says it wants to invest $600 billion in US infrastructure and jobs by 2028 (Nov. 10, 2025), https://www.techradar.com/pro/meta-says-it-wants-to-invest-usd600-billion-in-us-infrastructure-and-jobs-by-2028. 20 DHS reviewed the research cited by the commenter from the Economic Innovation Group and George Mason University entitled, Unintended Consequences of Restrictions on H-1B Visas (Jan. 28, 2021), https://www.mercatus.org/research/policy-briefs/unintended-consequences-restrictions-h-1b-visas. Comment: Several commenters said large IT companies or outsourcing firms would disproportionately benefit from this rule, as they are more likely to pay higher wages and could exploit the proposed rule to their advantage, contrary to the intent of this rule. Commenters remarked that this approach would unfairly favor large, established corporations that are able to pay higher salaries, including the large tech companies that are the predominant users of the H-1B program, with one commenter claiming that this weighted lottery system “would exaggerate their dominance of the program.” A commenter remarked that IT companies may end up profiting even more under the proposed rule, while others said that outsourcing companies would be “rewarded” by this rule and fill positions in areas of “less critical need.” A few commenters claimed that the rule will actually increase the number of large IT outsourcing companies selected in the lottery, as these companies generally certify at levels II and III. For instance, a commenter claimed that “large IT outsourcers would be awarded 7.4 percent more visas under the proposed rule than under current policy” while other commenters cited an analysis indicating that large IT outsourcing firms would receive 8 percent more visas under the rule. In addition to benefitting large outsourcing companies, a commenter said that the proposed system would also benefit other H-1B-dependent employers, even though they pay less than other companies. The commenter explained that large outsourcers and other H-1B-dependent employers pay less than other H-1B employers, but they get certified at higher wage levels because they use H-1Bs for workers in lower-skilled, lower-paid occupations, and provided an analysis to support this contention. 21 This analysis indicated that the rule would increase the share of selected registrations for H-1B dependent companies by 4 percent. 21 Jeremy Neufeld, The `Wage Level' Mirage: How DHS's H-1B Proposal Could Help Outsourcers and Hurt U.S.-Trained Talent, Inst. for Progress (Sept. 24, 2025), https://ifp.org/the-wage-level-mirage/. Response: DHS disagrees with the assertion that the weighted selection process will disproportionately benefit large IT or outsourcing companies and H-1B-dependent employers that use the H-1B program to fill lower-skilled, lower-paid occupations. Under the new selection process, registrations or petitions for positions with salaries that correspond to lower wage levels will have a lower chance of selection than those with salaries that correspond to higher wage levels. This will incentivize all H-1B cap-subject employers, including outsourcing companies and H-1B dependent employers, to offer higher wages to increase their chances of selection, thereby aligning with the program's goal of prioritizing highly skilled and highly paid workers. DHS acknowledges the analysis cited by some commenters that this rule will likely increase the share of selected registrations from large IT outsourcers and, to a lesser extent, H-1B dependent employers. However, this analysis appears to misunderstand the nature of the weighting process which is generally based on the highest wage level that the proffered salary would equal or exceed and is not based purely on Department of Labor (DOL) wage levels. For instance, commenters cited to a report that says: “On the surface, this seems like a merit-based reform: higher wages should mean higher skills. In reality, DOL's Wage Levels are very different from actual wages. The Wage Level framework was never designed to compare wages across occupations because it measures relative seniority within a job category, not actual pay. There are many workers paid at the highest DOL Wage Level but making below the median American wage, while some at the lowest DOL Wage Level are among the best-paid in the economy.” 22 This statement does not acknowledge that the weighted registration process accounts for the actual salary proffered by employers, which could correspond to a higher wage level. For registration purposes, the requirements of the position corresponding to the DOL wage level would only be relevant if OEWS wage data is not available. But even if this analysis were reliable, DHS reiterates that the weighted selection process is not intended to treat any companies or industries better or worse than others. Again, the goal of this rule is to implement a weighted selection process that would generally favor the allocation of H-1B visas to higher-skilled and higher-paid aliens, regardless of company type or industry. 22 Jeremy Neufeld, “The `Wage Level' Mirage: How DHS's H-1B Proposal Could Help Outsourcers and Hurt U.S.-Trained Talent,” Inst. for Progress (Sept. 24, 2025), https://ifp.org/the-wage-level-mirage/. Comment: Commenters wrote that the proposed rule would have a negative impact on the workforce and U.S. economy. Some commenters stated that the proposed rule would negatively impact the United States' ability to maintain key talent pipelines, asserting that entry-level positions are crucial for developing the future workforce and that removing early-career talent from the workforce pipeline would harm long-term economic growth. Another commenter remarked that the United States relies on the contributions of global talent for innovation, economic growth, and competitiveness. A few commenters remarked that new or growing companies, which often hire foreign talent and would be disadvantaged by this rule, create most new U.S. jobs. One commenter asserted that in the technology industry, each H-1B request is associated with an increase of approximately five jobs, while another said that unemployment in technology fields declined from 3.4 percent to 3 percent over the past year, even as the number of H-1B workers remained significant. A commenter pointed out that studies have shown that “high-skilled immigration causes large increases in productivity and economic growth in the United States” and that U.S. firms employing highly skilled international graduates are more likely to expand business, research, and development. Other commenters suggested that high-skilled immigration generates additional domestic employment opportunities, reduces unemployment in certain occupations, and complements U.S. workers rather than replacing them. Some commenters stated that by making it difficult to hire recent graduates, the rules would interfere with investment and innovation in industries that rely on highly skilled entry-level workers to fill critical roles that cannot be met by the U.S. labor market alone. Similarly, a commenter said that limiting access to H-1B visas for early-career professionals would reduce the flow of new ideas, constrain entrepreneurship, and slow wage growth in high-productivity sectors. Another commenter stated that the proposed rule would reduce the diversity of specialty occupations in the U.S. workforce and weaken innovation. A commenter wrote that instead of benefiting U.S. workers, the rule would “hit entry- and mid-level workers the hardest, blocking young Americans” from certain jobs. Response: The goal of this rule is to favor the allocation of H-1B visas to higher-skilled and higher-paid aliens. DHS believes the weighted selection process implemented through this rule will best achieve this goal and disagrees that this rule will have a net negative impact on the workforce and the U.S. economy. Instead, DHS believes this rule will incentivize employers to proffer higher wages, or to petition for positions requiring higher skills and higher-skilled aliens that are commensurate with higher wage levels, thereby attracting the best and the brightest employees and promoting innovation across all industries and occupations. DHS further believes that increasing the chance of selection for higher-skilled, higher-paid aliens will encourage competition and better protect the wages, working conditions, and job opportunities of U.S. workers. Regarding the studies and benefits of high-skilled immigration mentioned by some commenters, DHS acknowledges that high-skilled immigration in general can be beneficial to companies, the workforce, and the economy at large. However, these studies and commenters do not acknowledge the specific problem that this rule addresses, which is the abuse of the H-1B program to bring in lower-skilled workers in lower-paid positions. Further, this rule favors the allocation to higher-skilled aliens but does not alter the numerical limitations, such that higher-skilled aliens who are selected and ultimately granted H-1B status may still provide the general benefits that the commenter alludes to, while better protecting the wages, working conditions and job opportunities of U.S. workers. DHS does not agree that the rule will `hit entry and mid-level U.S. workers the hardest' or `block young Americans' from jobs. The commenter offers no data connecting the weighted selection process to reduced job opportunities for U.S. workers. The rule does not change the number of H-1B cap-subject visas. It does not eliminate lower-wage jobs or employers' ability to hire or train entry-level workers. Employers must comply with statutory and regulatory requirements ensuring that H-1B workers do not adversely affect the wages and working conditions of U.S. workers. The purpose of the rule is not to raise H-1B wages at the expense of U.S. workers. Instead, by improving the probability that higher-wage H-1B positions are selected, the weighted selection process may reduce reliance on lower wage filings and can help preserve more entry- and mid-level employment opportunities for U.S. workers. Comment: Some commenters remarked that negative impacts to U.S. industries would affect U.S. citizens and young Americans, stating that: losing access to educators would lead to fewer learning opportunities for American students; fewer international engineers would impact mid-sized manufacturers, slowing innovation and hurting U.S. workers who rely on these jobs; fewer international doctors would impact healthcare for Americans; disadvantaging startups reduces opportunities for Americans; disadvantaging justice and public interest firms that rely on international workers could create inequities in the justice system, ultimately harming U.S. citizens; disadvantaging engineers and architects would shut out mid-sized construction companies, which would slow projects and drive up costs for American homeowners; and disadvantaging companies involved in supply chain operations can increase delivery costs and create delays that would impact American consumers. Another commenter noted that as a U.S. citizen, they may see fewer employment opportunities if research labs that depend on international workers downsize because of the proposed rule. A commenter claimed that the rule would result in costs to the U.S. economy in terms of U.S. employers not having access to necessary skills, which would delay productivity and innovation, disrupt delivery of essential services to the American public, and cause employers to abandon projects or move the projects overseas. The commenter concluded that these costs outweigh the benefits of this rule. Response: DHS disagrees with the commenters' assertions that this rule will negatively impact U.S. industries, U.S. citizens, and young Americans. As explained in the other responses throughout this rule, the weighted selection process would likely have little effect on certain occupations, such as professors and doctors, since these occupations are usually cap-exempt or have other immigration pathways for employment in the United States (such as J-1 or the Conrad 30 program for doctors). Regarding small and mid-size companies and startups, these employers will be treated the same as all other employers and have the option to pay any highly sought after beneficiary a higher wage for a better chance at selection. As for opportunities for U.S. citizens, DHS disagrees that they will see fewer employment opportunities at research labs if these labs are not able to hire as many international workers. Rather, DHS anticipates that if these companies hire fewer international workers, they may look to fill such roles with U.S. workers, thereby improving job prospects for U.S. workers. With respect to the commenter's assertion that the asserted economic costs of the rule outweigh the benefits, DHS disagrees with this commenter. The commenter did not provide data to support the claimed costs of this rule on the U.S. economy. In addition, this commenter did not consider the costs to U.S. workers who have been displaced or denied employment opportunities, or whose wages have been suppressed, due to the abuse of the H-1B program. Incentivizing employers to proffer higher wages to aliens seeking H-1B status to increase their chance of selection would indirectly benefit the wages, working conditions, and job opportunities of U.S. workers and mitigate the claimed costs to the U.S. economy that the commenter described. Comment: Some commenters warned that the proposed rule would create artificial wage inflation, which harms U.S. workers. The commenters claimed that the rule would encourage employers to inflate wages and overpay foreign workers compared to U.S. workers, creating inequity for U.S. workers performing the same work who are paid less. Response: This rule does not mandate what wages employers must pay their employees and does not mandate employers to pay more for their H-1B workers. Rather, this rule fills in a statutory gap regarding how to administer the H-1B numerical allocations in years of excess demand and does so in a manner that will incentivize employers to employ highly paid, highly skilled workers. Rather than overpaying foreign workers as compared to U.S. workers, DHS believes that U.S. employers that might have petitioned for cap-subject H-1B workers to fill relatively lower-paid, lower-skilled positions may be incentivized to hire available and qualified U.S. workers for those positions. DHS also believes that an employer who offers a higher wage than required by the prevailing wage level only would do so if it was in their economic interest to do so based on the beneficiary's skill level and relative value to the employer. Comment: Many commenters said that the proposed rule would negatively affect the United States' ability to compete for global talent. A commenter said that America's competitors focus on attracting young talent and the proposed rule would limit the United States' ability to do the same. Several commenters stated that the proposed rule may cause a “brain drain” or “talent migration” away from the United States, including from certain industries. Some commenters expressed concern that the proposed rule, when viewed alongside other recent immigration policy changes, will negatively impact U.S. companies' ability to access, retain, and move talent needed for global competition, which they said will diminish the country's economic security, contrary to DHS's statutory mission under the Homeland Security Act. Some commenters said that the proposed rule could lead companies to deprioritize roles in key fields, such as STEM and AI research. Response: DHS does not agree that this rule will weaken America's competitiveness, harm innovation and entrepreneurship, or lead to “brain drain.” On the contrary, DHS believes this rule will strengthen America's competitiveness and innovation by incentivizing and facilitating the admission and retention of higher-paid, higher-skilled foreign workers, including those in key fields, such as STEM and AI research. Under this rule, U.S. employers will have increased access to more talented, higher-paid foreign workers, thus increasing innovation and productivity for these employers and contributing to American competitiveness. DHS disagrees with the claims that this rule will diminish the country's economic security and is contrary to DHS's statutory mission under the Homeland Security Act. As already discussed earlier in this preamble, the large-scale replacement of U.S. workers through systemic abuse of the program has undermined both the United States' economic and national security. By addressing these abuses, this rule supports the nation's economic and national security and is consistent with DHS's statutory mission under the Homeland Security Act to “ensure that the overall economic security of the United States is not diminished by efforts, activities, and programs aimed at securing the homeland.” HSA sec. 101(b)(1)(F), 6 U.S.C. 111(b)(1)(F). 4. Negative Impacts on National Security Comment: Some commenters expressed opposition to the proposed rule on the basis of national security and strategic interests. A commenter stated that international students account for over half of graduate enrollments in computer science and engineering in U.S. universities, fields that directly contribute to advances in AI, cybersecurity, biotechnology, and semiconductor design—all areas identified by the Departments of War and Commerce as critical to U.S. national security and economic resilience. Other commenters stated that the proposed rule will undermine the global competitiveness of U.S. businesses and negatively impact the overall economic security of the United States. One commenter said that international students in key technical and scientific fields at U.S. universities will be more likely to find post-graduate employment outside the United States if this rule is passed, noting that “competitor countries that recognize the value of attracting these highly sought-after professionals are strengthening their analogous programs.” Another commenter similarly emphasized the importance of retaining foreign students that pursue in-demand degrees at U.S. universities, asserting that it is in the national interest that foreign students completing U.S. graduate degrees apply their skills to advancing U.S. interests, rather than seeking opportunities in their home country or another country with more flexible early-career immigration pathways. Response: DHS does not believe this rule will disadvantage prospective beneficiaries contributing to advancements that strengthen national security or innovation in critical sectors, and the commenters have not provided evidence that this is likely to occur. A general correlation between degrees obtained by international students and fields that contribute to national security does not demonstrate that this rule will negatively impact critical industries or undermine national security. Rather, DHS believes this rule will incentivize employers to proffer higher wages, or to petition for positions requiring higher skills and higher-skilled aliens that are commensurate with higher wage levels, thereby attracting the best and the brightest employees and promoting advancements and innovation across all industries, including those that are important to national security. Further, as noted in the H-1B Proclamation, abuses of the H-1B program present a national security threat by discouraging Americans from pursuing careers in science and technology, risking American leadership in these fields. 90 FR 46027 (Sept. 24, 2025). This rule will help reverse this trend of abuse and help strengthen national security. 5. Negative Impacts on Entry-Level Workers and Recent Graduates Comment: Many commenters expressed concern that the proposed weighted selection process would disproportionately disadvantage recent graduates and entry-level workers, reducing or eliminating their chance of selection. One commenter said that the proposed weighted selection process will penalize early-career, U.S.-educated international talent because the wage levels measure seniority within an occupation and most international students are hired at level I or level II wages, and provided an analysis to support this contention. 23 Commenters remarked that most new graduates typically start their careers at level I wages due to their limited work experience, but many soon become valuable contributors and leaders and the rule would harm these graduates' ability to be employed, undermine the “education-to-employment pipeline,” and harm companies' ability to attract qualified talent in the future. Similarly, some commenters remarked that talent or value is not always correlated with wage level or years of experience, but the proposed rule would create a system that rewards seniority or wage level rather than merit, pushing out the next generation of early-career innovators and harming the companies that employ them. One commenter stated it does not make sense to prioritize older, higher-paid workers who have fewer years left in their career. Commenters also noted that international graduates already have difficulty securing an entry-level role due to lack of U.S. work experience, and the proposed rule would present an additional challenge that is unfair for aliens who had studied in the United States legally and would limit career opportunities for these aliens. 23 Jeremy Neufeld, The `Wage Level' Mirage: How DHS's H-1B Proposal Could Help Outsourcers and Hurt U.S.-Trained Talent, Inst. for Progress (Sept. 24, 2025), https://ifp.org/the-wage-level-mirage/. Other commenters wrote that entry-level positions are important and legitimate roles, not examples of program abuse, and represent the natural starting point for professional growth. Commenters reasoned that “blocking” level I beneficiaries from the H-1B program undermines upward mobility and creates an artificial barrier to career development. Some commenters stated that under the current system, level I applicants already face low selection odds of approximately 10-15%, and the proposed weighted system would reduce these chances to “nearly zero,” effectively creating what some described as a “de facto ban” on early-career professionals. One commenter said that the probability of a level I applicant being selected would be reduced by 48 percent, and another commenter said the probability of a level I or II applicant being selected could decrease to 15 percent. Some commenters stated that while their companies' starting salaries for recent graduates are competitive, they cannot compare to big corporations that can offer high salaries. A commenter stated that certain industries generate essential public and economic benefits, but tend to pay less, which does not reflect a lack of skill or potential. Commenters said that the emphasis on wage-based selection could harm the nation's long-term interests, and that the U.S. economy benefits from attracting and retaining individuals at all career levels. Another commenter also emphasized that wage level is not dispositive of an employee's contribution value and remarked that limiting the amount of level I and II professionals is not sound economic policy and would lead to negative impacts greater than any benefit derived from higher wages paid to level III and IV employees. Response: DHS disagrees that this rule would be “blocking” or amount to a “de facto ban” on all entry-level workers or early-career professionals, or that their chances of selection would be “nearly zero.” As stated in the NPRM, DHS recognizes the value in maintaining the opportunity for employers to secure H-1B workers at all wage levels. In this respect, this rule differs from the selection process in the 2021 H-1B Selection Final Rule, through which USCIS would have ranked and selected registrations generally based on the highest equivalent OEWS wage level that the proffered wage equaled or exceeded for the relevant SOC code and area(s) of intended employment, beginning with level IV and proceeding in descending order with levels III, II, and I. The 2021 rule was expected to result in the likelihood that registrations for level I wages would not be selected, as well as a reduced likelihood that registrations for level II would be selected. Conversely, as noted in Table 13 of the NPRM, DHS projects that through the weighted selection process implemented by this rule, those with a level I registration (or petition, as applicable) will have a 15.29-percent probability of being selected to file a cap-subject petition, and those with a level II registration (or petition, as applicable) will have an increased chance of selection as compared to the current random selection process (30.58% up from 29.59%, respectively). DHS believes commenters' claims that this rule would result in a de facto ban or block on early-career professionals are inaccurate and overstated. For instance, prior to implementation of the beneficiary-centric selection process, 780,884 total registrations for 85,000 statutorily capped H-1B visas allocated randomly in cap fiscal year 2024 yielded a mere 10.9-percent probability that a foreign student educated in the United States would ultimately be able to obtain an H-1B cap-subject visa. 24 24 See Historical Data Table from USCIS H-1B Electronic Registration Process at https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations/h-1b-electronic-registration-process (last updated July 18, 2025). DHS acknowledges that, under this rule, in years of excess demand, relatively lower-paid or lower-skilled positions will have a reduced chance of selection. However, this rule maintains the opportunity for employers to secure H-1B workers at all levels, including recent graduates or those who are just starting out in their professions. Additionally, if an employer chooses to offer a recent foreign graduate a wage that equals or exceeds a particular wage level, the registration will be weighted accordingly, regardless of the beneficiary's experience level or the requirements of the position. In fact, this rule will benefit talented international graduates who are offered wages at higher levels, as they will have a higher chance of selection compared to the current random selection process. DHS notes that this rule does not require any employer to offer higher wages. Rational employers will not offer wages exceeding the expected value of the employee's work. To the extent an employer chooses to offer a higher wage, they are doing so because that higher wage is a clear reflection of the beneficiary's value to the employer. With respect to the analysis provided by a commenter about the “wage level mirage,” this article appears to misunderstand the nature of the weighted selection process. The weighting process is generally based on the beneficiary's equivalent wage level, that is, the highest wage level that the proffered salary would equal or exceed. The weighting process specifically allows for consideration of the proffered salary. Thus, even if a job offer would otherwise be classified as level I under the OEWS wage level structure for Labor Condition Application (LCA) purposes based on the requirements of the position, the beneficiary could still be assigned to a higher equivalent wage level based on a high salary for registration purposes. Furthermore, the analysis grouped firms that registered more than 2,000 H-1Bs in FYs 2021, 2022, 2023, or 2024 together as “outsourcers” to argue that “other companies” with fewer than 2,000 registrations are disadvantaged by this rule because they generally register more level I positions despite paying generally higher salaries. This overlooks the direct impact of the rule on lottery outcomes of those employers of more than 2,000 H-1Bs who, like all other companies, will see fewer level I registrations selected and more level II, III and IV registrations selected. The comment presents no evidence that these “outsourcers” are more likely to register positions for workers educated outside the United States and neither the comment nor analysis acknowledges that the referenced cap fiscal years 2021-2024 saw exponential growth of eligible registrations for beneficiaries with multiple eligible registrations. Thus, DHS does not find this analysis persuasive. To the extent that this rule may disadvantage recent graduates and entry level alien workers seeking positions corresponding to a lower wage level, these positions may instead be made available to U.S. graduates and workers starting out in their careers. This result would be consistent with the purpose of the H-1B program, which is to help employers fill labor shortages with highly skilled workers, rather than as a program for employers to use to replace U.S. workers with lower-paid, lower-skilled labor. As noted in the H-1B Proclamation, exploitation of the H-1B program to replace, rather than supplement, U.S. workers with lower-paid, lower-skilled labor has resulted in a disadvantageous labor market for U.S. citizens and especially for U.S. college graduates who are facing higher unemployment rates. 25 90 FR 46027 (Sept. 24, 2025). 25 Federal Reserve Bank of New York, The Labor Market for Recent College Graduates, https://nyfed.org/collegelabor (last updated Aug. 1, 2025) (data from 2023). Lastly, DHS disagrees that the rule is not sound economic policy. This rule will help the United States attract the best and brightest workers by increasing the chance of selection for highly skilled, highly paid aliens who are more likely to make significant contributions to their employers and industry, while also better protecting the wages, working conditions, and job opportunities of U.S. workers. Comment: Some commenters stated that this rule would make it more difficult for foreign students, recent graduates, trainees, postdoctoral fellows, and specialists seeking to transition from F-1 to H-1B status through Optional Practical Training (OPT) or STEM OPT extensions so that they can enter the workforce and launch their professional careers. Some commenters stated the proposed rule would limit career paths available in the United States for recent graduates and early-career professionals and would disrupt the F-1 to H-1B pipeline, potentially causing employers to stop hiring students and terminate OPT participants. A commenter remarked that the uncertainty of H-1B selection is already a source of instability for these individuals and their employers, and the proposed weighted selection process would further disadvantage those in entry-level and research positions. A different commenter noted that OPT is a temporary transitional program and should not be viewed as guaranteed employment for international students, and without a bridge to H-1B status, international students would be “forced to leave” the United States despite years of education and contribution. Another commenter noted that this rule likewise negatively impacts companies who are already employing aliens as part of the F-1 program, but will not be able to transition them to the H-1B program. At least one commenter cited an analysis that found that the proposed selection process would reduce H-1B visas awarded to F-1 graduates by 7 percent despite these graduates earning higher salaries on average than other H-1B workers. 26 26 For the survey cited by the commenters, see Jeremy Neufeld, The `Wage Level' Mirage: How DHS's H-1B Proposal Could Help Outsourcers and Hurt U.S.-Trained Talent, Inst. for Progress (Sept. 24, 2025), https://ifp.org/the-wage-level-mirage/. Response: DHS disagrees. This rule will not preclude F-1 students in the United States from transitioning from OPT to employment under the H-1B visa or “force” such students to leave. As stated in the NPRM, DHS recognizes the value in maintaining the opportunity for employers to secure H-1B workers at all wage levels, including those employers seeking to hire workers in F-1 status. While this rule generally may reduce the chance of selection for relatively lower-paid or lower-skilled positions, it does not create a barrier to being selected in the H-1B lottery. Further, this rule has no impact on OPT. To the extent that F-1 students are talented and obtain job offers corresponding to high wage levels, this rule may facilitate their ability to transition to the H-1B program. DHS disagrees with the analysis cited by some commenters about the impact on international students because this article misunderstands the nature of the weighted selection process that generally weights registrations (or petitions, if applicable) based on the highest wage level that the proffered wage will equal or exceed. For example, one commenter cites to data showing that “F-1 students entering the H-1B process earned higher salaries on average than non-F-1 workers, but they were far more likely to be placed at the lowest Wage Levels.” 27 Under the weighted process finalized by this rule, F-1 students who earn relatively high salaries may be ranked at higher wage levels (the wage level that their proffered wage equals or exceeds, if OEWS wage level data is available for that occupation and area of employment) and would not be constrained to the “lowest wage levels” for registration purposes. 27 See Jeremy Neufeld, “The `Wage Level' Mirage: How DHS's H-1B Proposal Could Help Outsourcers and Hurt U.S.-Trained Talent,” Inst. for Progress (Sept. 24, 2025), https://ifp.org/the-wage-level-mirage/. Finally, to the extent that this rule does make it more difficult for some F-1 students seeking lower-skilled, lower-paid positions to transition to an H-1B visa, it is important to note that the purpose of the H-1B visa program is not to serve as an early career transition program for foreign students. Instead, the H-1B program was created to help U.S. employers fill labor shortages in positions requiring highly skilled or highly educated workers while protecting the wages, working conditions, and job opportunities of U.S. workers. The entry-level or other lower-skilled, lower-paid positions that these F-1 students may have filled could instead be made available to American students and recent graduates. DHS believes that this rule appropriately balances the interests of U.S. workers with the interests of petitioning employers and the alien workers they seek to employ as H-1B nonimmigrants. 6. Negative Impacts on Mid-Level Workers Comment: In addition to negatively impacting entry-level professionals, some commenters claimed that this rule would also negatively impact mid-level professionals seeking H-1B visas or status. For instance, a commenter claimed that a mid-wage level employee would be disadvantaged by this rule because they would have a lower chance of selection. A commenter provided an example of a level II professional who is “uniquely qualified to lead a critical project involving cutting-edge technology” and claimed that the level II wage does not diminish the employee's value. The commenter concluded that “limiting employers' access to foreign talent at the two lower levels is not sound economic policy.” Response: DHS disagrees with the assertion that the rule would disadvantage mid-level professionals earning wages corresponding to wage levels II and III. Under the weighted selection process, level II and level III registrations or petitions will still have a reasonable chance of selection, as outlined in the NPRM. Specifically, as noted in Table 13 of the NPRM, DHS projects that these groups will have an increased probability of selection compared to the current random selection process, with the probability of selection increasing by 3 percent for level II and by 55 percent for level III. As noted previously, the weighted selection process is designed to incentivize employers to offer higher wages, which generally correlate with higher skill levels, while maintaining opportunities for employers to secure H-1B workers at all wage levels. This approach strikes a balance between prioritizing highly skilled and highly paid workers and preserving access to foreign talent across all wage levels. Comment: A commenter claimed that the proposed rule makes it more likely that U.S. companies could shift their talent acquisition policy to favor foreign mid-career to senior-level professionals rather than focusing on hiring recent international graduates from U.S. universities. Response: As noted, the goal of this rule is to incentivize employers to offer higher wages, or to petition for positions requiring higher skills and higher-skilled aliens, that are commensurate with higher wage levels. A U.S. company shifting their talent acquisition policy to use the H-1B program only for higher-skilled aliens more advanced in their careers aligns with that goal. If a U.S. company wishes to focus its talent acquisition policies on hiring recent graduates, it may focus its search among American graduates. 7. Negative Impacts on International Students Comment: Many commenters expressed concern about the negative impact the proposed rule would have on international students who are studying at U.S. universities. Commenters stated that these students invest significant time and financial resources to obtain U.S. degrees, often paying substantially higher tuition than domestic students. Some commenters stated that the proposed rule would make it more difficult for these students to secure employment in the United States after graduation, effectively wasting their investment in U.S. education or sending the message that their investment and contributions mean little if they are not also high earners. Another commenter remarked on the many benefits that recent graduates bring, which help global companies. Many commenters stated that the proposed rule may cause international graduates who studied in the United States to relocate to other countries that actively welcome skilled workers, ultimately harming the U.S. economy and innovation. Some commenters remarked that this rule sends a discouraging signal to prospective international students, who may choose to study in other countries with clearer pathways to employment and immigration. Some commenters noted that because the rule applies to the 20,000 advanced degree exemption, it will deprive the workforce of graduates in high-demand fields. Another commenter said that tighter H-1B policies will cause the academic profile of international applicants to U.S. schools to worsen, in that the best students are the ones most likely to be discouraged from coming to the United States. This commenter also noted that despite being disproportionately at relatively low wage levels, international students currently appear to have higher average salaries than other H-1B visa holders. The commenter noted that the difference reflects, at least in part, the concentration of petitions for international students in relatively high-wage occupations and areas. Response: DHS disagrees that this rule will significantly harm international students. First, this rule will not impact the ability of international students to study in the United States, which is the basis of their admission to the United States in student status. While the prospect of future H-1B employment may be a factor in deciding whether to study in the United States, the reputation of the academic institutions themselves is also an important factor for students choosing to study in the United States. DHS also disagrees that this rule will worsen the profile of international students. Conversely, DHS believes this rule will help attract the best and brightest international students, to the extent that they will earn relatively high wages, as they will see their chances of being selected in the H-1B lottery increase compared to the current random selection process. As a commenter pointed out, international students appear to have higher average salaries than other H-1B nonimmigrants, which seems to suggest that international students will generally benefit from this rule, contrary to the commenter's claims. DHS disagrees that this rule will lead U.S.-educated international students to relocate to other countries. On the contrary, DHS believes this rule will incentivize and facilitate the admission and retention of the best and brightest international students. Facilitating the admission of higher-skilled foreign workers, as indicated by their earning of wages that equal or exceed higher prevailing wage levels, will increase the United States' competitive edge in attracting the “best and the brightest” students in the global labor market, consistent with the goals of the H-1B program. DHS also reiterates that recent graduates with master's or higher degrees from U.S. institutions of higher education already benefit from the existing advanced degree exemption and cap selection order. Comment: Some commenters stated that the proposed rule would discourage foreign students from studying in the United States, citing a survey of international graduate students in the United States conducted by the Institute for Progress and National Association of Foreign Student Advisers (NAFSA): Association of International Educators. 28 Specifically, commenters cited the survey results finding that 53 percent of international graduate student respondents would not have enrolled in U.S. universities if “access to H-1B visas was determined by wage levels.” The same survey also found that 48 percent of master's students, 52 percent of Ph.D. students, and 38 percent of postdoctoral respondents, who said they are currently likely to try to obtain another visa under current rules, would not do so if access to H-1B visas was determined by wage levels. 28 The commenters cited the September 15, 2025, survey, “Surveys on International Talent Pipeline” conducted by the Institute for Progress and NAFSA: Association of International Educators. Response: DHS reviewed the survey results and does not find them convincing. 29 In pertinent part, the survey concluded that “53% of respondents said they would not have enrolled in the first place if access to H-1B was determined by Wage Levels.” However, this rule will not result in “access to H-1B [being] determined by Wage Levels.” Again, this final weighted selection process will maintain the opportunity for employers to secure H-1B workers at all wage levels and thus does not preclude “access” to the H-1B program. While selection will be weighted generally based on corresponding wage level, it will not be “determined” by wage levels. This final rule also does not affect H-1B petitioners who are exempt from the H-1B cap. Similarly, the relevant survey question asked: “Think back to your decision to enroll in a US program. If eligibility to work for a for-profit employer after graduation were out of reach unless you are compensated at the highest levels and above the median wage for all Americans working in your occupation, including those most experienced, how likely would you have been to enroll in a degree-granting program in the US?” The survey question itself was inaccurate. This wage-based selection rule does not impact eligibility for H-1B classification. It also does not make selection in the H-1B registration “out of reach” as this rule does not create a barrier to getting an entry level job and being selected in the registration. 29 DHS reviewed the survey results available at Institute for Progress and NAFSA: Association of International Educators, Surveys on International Talent Pipelines (Sept. 15, 2025), https://ifp.org/wp-content/uploads/2025-Surveys-on-International-Talent-Pipelines-1.pdf. Comment: Some commenters discussed how the proposed rule would have a negative impact on businesses supported by foreign students and faculty who provide important economic contributions. Some commenters pointed to data indicating that international students contribute billions to the U.S. economy through direct spending and support hundreds of thousands of jobs, stating the rule would be a setback for those contributions. Some commenters similarly remarked that lower enrollment of foreign students would mean losing the boost to local economic activity and jobs that they bring, and would have “ripple” or “cascading” effects on businesses that support colleges and universities, including service providers, such as restaurants and retail stores. One such commenter cited Institute of International Education (IIE) Open Doors data estimating the contribution of foreign students to the United States economy to be $44.7 billion from 2018-2019. Another commenter suggested that in 2026, a 40 percent plunge to approximately 657,000 students would eviscerate $17.5 billion and 151,000 jobs. A different commenter similarly expressed that NAFSA reports that international students contribute $43.8 billion to the U.S. economy and create or support 378,175 jobs. A commenter said that new international graduates also support the local economies by paying rent, shopping in local stores, and volunteering. A different commenter remarked that the proposed rule will remove the ability of international graduates of U.S. universities to transition into the workforce, and asserted that the resulting loss in innovation output, startup formation, and tax generation would be staggering. The commenter suggested that the cumulative impact could exceed $1-2 trillion in lost economic productivity. The commenter expressed that declining international enrollment would create a chain reaction, causing a collapse in university revenues, layoffs and program closures, local economic contraction, reduced tax bases, and weakened national competitiveness. Some commenters stated that new international graduates often are employed outside of major metropolitan areas, and that businesses in these areas rely on new graduates to support development, technical workflows, and business growth. Some commenters remarked that concentrating international students in major cities would strain infrastructure and increase housing costs. Response: DHS disagrees with these commenters. Since this rule does not impact the ability of international students to study in the United States, it does not take away the economic and other benefits these international students provide for their local economies and communities. In addition, DHS disagrees that this rule removes the ability of international graduates to enter the workforce. While this rule may disadvantage some recent graduates to the extent that they have job offers with salaries at relatively lower wage levels, this rule does not prevent recent graduates on F-1 status from transitioning to H-1B status. Rather, the rule will generally favor the allocation of H-1B visas to higher-skilled and higher-paid aliens while maintaining the opportunity for employers to secure H-1B workers at all wage levels, without disadvantaging employment opportunities for recent American graduates in the same or similar fields. Further, this rule will facilitate the admission of higher-skilled workers. Facilitating the admission of higher-skilled foreign workers, as indicated by their earning of wages that equal or exceed higher prevailing wage levels, is expected to increase the United States' competitive edge in attracting the “best and the brightest” in the global labor market and benefit the economy. H-1B workers earning higher wages as a direct result of this rule are likely to increase, not decrease, many of the economic impacts that were described by commenters, such as housing or shopping in local stores. Comments citing Open Doors data and NAFSA analysis provided no evidence or rationale for their own beliefs that the rule would result in reduced enrollment and dire cascading effects. DHS again emphasizes that the weighted-selection mechanism preserves the possibility that level I registrations will be selected. Open Doors' data on enrollment trends show total number of international students has grown every year since 2004/2005 with the exception of temporary declines in 2019/2020 and 2020/2021 due to COVID-19. 30 DHS notes that this growth in international students occurred despite decades of generally diminishing probability of obtaining an H-1B cap-subject visa. 31 Open Doors data affirm international students' motivations for studying in the United States are complex and unlikely to exhibit the sensitivity commenters speculated would lead to a collapse of this talent and innovation pipeline. 32 30 See IIE Open Doors, International Students, Enrollment Trends https://opendoorsdata.org/data/international-students/enrollment-trends/ (last visited Nov. 24, 2025). 31 In general, the number of H-1B cap-subject petitions received in the years before registration, and the number of registrations submitted in the years before the beneficiary centric selection process, has trended upwards each year whereas the statutory cap has remained the same at 85,000 per year. See, e.g., USCIS, H-1B Registration Process (last updated July 18, 2025), https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations/h-1b-electronic-registration-process (showing the increasing number of registrations from cap years FY2021 through FY2024 prior to the beneficiary centric process); “Registration Requirement for Petitioners Seeking to File H-1B Petitions on Behalf of Cap-Subject Aliens” 84 FR 888, 928 (Jan. 31, 2019) (table 6 showing the generally increasing numbers of H-1B cap-subject petitions received from cap years FY2013 through FY2017). 32 See Daniel Obst & Joanne Forster, IIE, Country Report: USA, Perceptions of European Higher Education in Third Countries (2007), https://www.iie.org/wp-content/uploads/2022/12/International-Students-in-the-US.pdf. Table 10 shows improving chances for an international career is a strong motivation, but not the only motivation for studying in the United States. Table 17 shows that complicated visa procedures/strict requirements were an obstacle to foreign students planning to remain in the United States, but many other obstacles are not related to an expectation of H-1B employment after college. 8. Negative Impacts on STEM Fields Comment: Multiple commenters remarked on negative impacts on international graduates and workers with degrees in STEM fields as well as on their employers that depend on them. Many commenters remarked that recent graduates often bring the most current knowledge in rapidly evolving fields like AI, clean energy, climate science, public health, machine learning, semiconductors, bioinformatics, and biotechnology, and that they play indispensable roles on their teams. Commenters stated that the rule would lock out entry-level STEM graduates trained in U.S. universities, wasting U.S. educational investment, and preventing those graduates from contributing to the U.S. economy. Commenters remarked that the United States competes for a global talent pipeline, especially in areas, such as STEM, biotechnology, AI, data infrastructure, cybersecurity, semiconductors, quantum computing, advanced manufacturing, and healthcare, and that this rule would undermine the talent pipeline in these fields. A commenter cited data that foreign nationals comprise a significant percentage of U.S. college graduates in STEM fields, and noted that “U.S. employers aggressively recruit the top students from U.S. colleges and universities to fill early career positions that leverage their skills.” This commenter similarly concluded that the rule would erode the pipeline of “highly educated and talented professionals, of which foreign students are a critical component pipeline.” Similarly, another commenter cited data showing that foreign students represent the majority of STEM masters and Ph.D. graduates in the United States, many of which are entering the labor market for the first time. Commenters also specifically addressed the proposed rule's negative impact on science and technology more generally, including in AI, robotics, machine learning, quantum computing, cybersecurity, electronics design and manufacturing, semiconductor manufacturing, biotechnology, digital health, automation, and data analytics fields or industries. The commenters expressed that their companies and industries rely on access to global talent through the H-1B program, and that they will be harmed without access to this talent. Some commenters claimed that there is not sufficient domestic talent in STEM fields, which is why they need continued access to the H-1B program. A commenter claimed that this rule would go against President Trump's efforts to increase investments in the U.S. semiconductor industry. Response: DHS disagrees with these commenters. This rule will not preclude early-career STEM graduates from being selected in the H-1B lottery. While this rule generally may reduce the chance of selection for an early-career STEM graduate who is relatively lower-paid, it does not create a barrier to getting an entry level job and being selected in the H-1B cap selection process. Additionally, this rule incentivizes employers to offer a wage that equals or exceeds a higher wage level for a beneficiary with desirable skills, regardless of the beneficiary's experience level or the requirements of the position, in order to increase a beneficiary's chance of selection in the H-1B lottery. Thus, contrary to commenters' claims, DHS believes this rule will facilitate the admission and retention of the best and brightest international students and enhance the talent pipeline in STEM fields. To the extent that this rule will disincentivize U.S. companies to hire fewer low-skilled, low-wage foreign STEM workers, DHS views this as an overall benefit to U.S. workers. First, these companies could instead be incentivized to hire qualified U.S. workers to fill STEM positions, including those U.S. workers who have STEM degrees but are currently unemployed or underemployed. 33 As highlighted in the H-1B Proclamation, a recent study indicated that in 2023, unemployment among recent computer science and computer engineering graduates was high as compared to graduates with other majors. 34 90 FR 46027 (Sept. 24, 2025). Notably, the abuse of the H-1B visa program has made it even more challenging for college graduates trying to find IT jobs, allowing employers to hire foreign workers at a significant discount to U.S. workers. 90 FR 46027 (Sept. 24, 2025). Observers have written that there are plenty of qualified U.S. workers with STEM degrees or pursuing such degrees who are seeking employment in these fields [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2025-23853. Public record. Not legal advice.