USCIS Proposal on Weighted Selection of H-1B Cap-Subject Registrants and Petitioners

On August 8, 2025 the Department of Homeland Security-US Citizenship and Immigration Services (DHS/USCIS) submitted for Office of Management and Budget (OMB) review a proposed rule titled Weighted Selection Process for Registrants and Petitioners Seeking To File Cap-Subject H-1B Petitions. USCIS had submitted the package for OMB review on July 17, 2025.

Here is the Office of Information and Regulatory Affairs (OIRA) submission blurb:

A side note: Prior to August 18, 2025, the reginfo.gov OIRA review site displayed the content in the table above showing that OIRA completed its review of the proposed rule on August 8, 2025. On August 19, 2025 the site was down for maintenance and when it came back up it showed the rule back under the "Regulations under EO 12866 Review" category rather than the “Regulatory Review Completed in Last 30 Days” category. This is in all likelihood simply a database issue. The reginfo.gov homepage contains the following alert: "Reginfo.gov is currently undergoing revisions. Until this temporary issue is resolved, data related to EO 12866 reviews and information collection requests (ICRs) may not accurately update." Furthermore, the Reviews completed in the last 30 days (updated daily) xml report on reginfo.gov continues to show review of the proposed rule as completed.

And so it is prudent to still consider OIRA review of the the proposed rule as having concluded on August 8 and  expect that DHS will now follow procedures to publish the proposed rule in the Federal Register, with a period for public comment. The proposal has not yet been published in the Federal Register, so nobody can submit comments yet. Once DHS publishes the proposed rule, which we expect will be soon, the Federal Register notice itself will contain information on the duration of the comment period and how to submit comments.

Since this is at the proposed rule stage, a rule would not become final until after the agency reviews public comments on the proposed rule, submits a final rule for OMB review, and then publishes a final rule in the Federal Register with a future effective date. See NAFSA's page General Rulemaking Process Under the APA for basic information on the rulemaking process.

We don’t know how similar the forthcoming proposed rule will be to a final rule published at the very end of the first Trump administration that was subsequently withdrawn by the Biden administration after it had been vacated by a Federal district court. That withdrawn Trump 1 administration rule would have modified how USCIS managed the H-1B cap-subject registration requirement "by generally first selecting registrations based on the highest Occupational Employment Statistics (OES) prevailing wage level that the proffered wage equals or exceeds for the relevant Standard Occupational Classification (SOC) code and area(s) of intended employment." This would have replaced the current random selection process for H-1B cap-subject registrations with a system that gave preference to higher wage earners.

Also unknown is how the proposal, once finalized, would interface with the 2024 USCIS final rule published at 89 FR 7456 (February 2, 2024) titled Improving the H-1B Registration Selection Process and Program Integrity, effective March 4, 2024 that established a "beneficiary-centric" selection process for H-1B cap registrations under which registrations are selected by unique beneficiary rather than by registration. See NAFSA's page USCIS Rule on Improving the H-1B Registration Selection Process and Program Integrity for background on the 2024 rule.

Also see New Trump Immigration Policy: Ending The H-1B Visa Lottery, Stuart Anderson, Forbes, July 21, 2025.

For background on the withdrawn 2021 rule, see:

• 86 FR 1676 (January 8, 2021), Modification of Registration Requirement for Petitioners Seeking To File Cap-Subject H-1B Petitions (the final rule that was subseqently vacated and then withdrawn)
• NAFSA's page Modification of Registration Requirement for Petitioners Seeking To File Cap-Subject H-1B Petitions for an analysis of that rule.
• NAFSA participated in the public comment process on the proposed rule, signing on to the following comment letters:
  • December 2, 2020 multi-sector organization comment letter coordinated by the Compete America Coalition, on the proposed rule's substantive provisions
  • December 2, 2020 multi-stakeholder comment letter coordinated by the Compete America Coalition, "expressing concerns with the unusually short 30-day comment period for the H-1B lottery prioritization NPRM."
• The California Northern District Court vacated the H-1B cap “highest paid” lottery rule, finding that that former acting Secretary of Homeland Security Chad Wolfe was not legally appointed to that position, and therefore had no authority to issue it. Read the decision in Chamber of Commerce of the United State of America et al v. United States Department of Homeland Security et al, Case No. 4:20-cv-07331.
• DHS withdrew this final rule effective December 22, 2021. See 86 FR 72516 (December 22, 2021).