President Trump’s executive office – the Office of Management and Budget (OMB), is currently reviewing a rule submitted by the US Department of Homeland Security (DHS). This rule – ‘Weighted selection process for H-1B cap applications’, once approved and finalized will fundamentally alter the way H-1B visas are allocated.
DHS intends to weigh the lottery based on salary levels tied to the Department of Labor’s (DOL) four-tier wage system – this would give those with a higher wage a better chance of being selected in the H-1B lottery. This move follows just days after the DOL sent a proposed rule to OMB for review, which sought to hike prevailing H-1B wages across all levels.
Immigration attorneys are largely of the view that the weighted selection rule will be finalized and implemented before the next H-1B filing season. There is an annual quota of 85,000 for H-1B cap applications. E-registrations for H-1B applications open up in March. As demand significantly exceeds supply, post registration a random lottery is conducted. The sponsoring employers then file a detailed H-1B application for those candidates (beneficiaries) who were successfully selected in the lottery.
This random selection mechanism will change. In September, when the ‘weighted lottery approach’ rule was released for public comments, TOI had done a deep dive into the mechanism and implications. An H-1B candidate with a Level IV wage offer (the highest tier) would be entered into the lottery four times, while a Level III beneficiary would be entered three times, a Level II beneficiary twice, and a Level I beneficiary only once. This ‘weighted lottery’ approach would give higher odds of selection to those offered the highest wages.
Under the current system, all beneficiaries (across all four levels) entered in the lottery face equal odds of selection of about 29.59%. Under the proposed rule, however, odds diverge sharply by wage level.
The implications for the Indian diaspora who aspire to work in the US at lower tiers – including new graduates from US universities are stark. For the fiscal ended September 2024, of the 1.41 lakh H-1B applications approved by US Citizenship and Immigration Services (USCIS), 80,449 (or 57%) were for Indian beneficiaries. It should be noted that the total figure is above the annual quota of 85,000 as USCIS keeps a buffer for rejections or employers withdrawing from the process.
The National Foundation for American Policy (NFAP) states that under the new mechanism, the probability of selecting an individual at Level IV for an H-1B application would increase by 107% but fall by 48% for individuals at Level I. Effectively, the rule would tilt opportunities heavily toward mid-career professionals or those in senior roles, while creating a barrier for entry-level professionals, including the bulk of recent international graduates from US universities.
NFAP found that, compared to the current system, individuals at Level I would receive 11,518 fewer H-1B selections, while people at Level IV would gain 4,426 more, Level III would receive 5,528 more H-1B selections and Level II would get an additional 1,564.
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Lubna Kably is a senior editor, who focuses on various policies a...
Read MoreLubna Kably is a senior editor, who focuses on various policies and legislation. In particular, she writes extensively on immigration and tax policies. The Indian diaspora is the largest in the world; through her articles she demystifies the immigration-policy related developments in select countries for outbound students, job aspirants and employees. She also analyses the impact of Income-tax and GST related developments for individuals and business entities.
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