The Trump administration has proposed a new immigration rule to change the H-1B selection process to favor people in senior positions. The new method uses “weighting” to fulfill a longstanding goal of Trump officials to hinder or prevent recent international students from gaining H-1B status. The proposed rule, which is subject to a 30-day comment period, is likely to be challenged in court on the grounds that U.S. immigration law does not permit selecting H-1B petitions based on salary or seniority.
The changes, if implemented, will take the U.S. immigration system further away from the goal expressed by Donald Trump in 2024, when he said international students should stay and work in the United States after graduating from U.S. universities. Analysts say this indicates that Trump is not closely involved in immigration policy, and White House and agency staff are pursuing their own agendas.
The latest move follows a presidential proclamation that imposed a $100,000 fee on the entry of H-1B visa holders. During the Oval Office signing ceremony, staff assured Trump that U.S. companies favored the $100,000 fee. However, interviews with attorneys did not find major companies that communicated prior support for the policy. Instead, many companies scrambled to bring employees back to the United States so they would not be barred from the country or subject to the fee.
H-1B temporary visas are important because they are typically the only practical way for a high-skilled foreign national to work long term in the United States and later gain permanent residence (a green card). The H-1B annual limit is 65,000, with a 20,000 exemption for individuals with a master’s degree or higher from a U.S. university. At U.S. universities, international students account for 73% of full-time graduate students in electrical and computer engineering. Under U.S. law, in addition to government fees often exceeding $5,000, employers must pay the higher of the actual or prevailing wage paid to U.S. professionals with similar experience and qualifications. A large body of research has concluded that H-1B visa holders are paid the same or higher than comparable U.S. professionals (i.e., people with similar degrees and experience).
How The New Immigration Rule Changes The H-1B Lottery
Under the current system, U.S. Citizenship and Immigration Services conducts a lottery when it receives more H-1B registrations than the 85,000 annual limit. Although the proposed rule retains a lottery, it differs significantly from the current system. Under the current system, all registrants have an equal chance of being selected for an H-1B petition. However, under the proposed rule, USCIS would employ the four Department of Labor salary levels used for prevailing wage determinations to “weight” the lottery in favor of individuals holding positions that require more experience.
The proposed rule would give registrants who are offered a position that corresponds to a Level IV salary four chances to be selected, a Level III registrant three chances, a Level II registrant two chances and a Level I registrant one chance. (A July 21, 2025, Forbes article discussed the likelihood the rule would use “weighting” based on the DOL system.)
“The method chosen to rank H-1B petitions does not measure skill level, as the proposed rule implies, but is a Department of Labor tool to divide job classifications based on the experience and related factors needed to perform in the position,” according to a new National Foundation for American Policy analysis of the proposed rule.
Immigration attorneys agree that the DOL’s Occupational Employment and Wage Statistics is a bad fit for the H-1B selection process. “The Department of Labor’s OEWS wage levels are designed as a job classification tool that reflects the amount of experience, supervision and responsibility required for a position, not an assessment of whether the worker is ‘highly skilled’ or ‘less skilled,’” said Vic Goel of Goel & Anderson in an interview. “A Level I role is simply an entry-level version of the occupation, while Level IV is a senior-level position requiring greater judgment and independence.”
Goel said USCIS used these DOL levels for purposes they were never intended. He disputes the central premise of the proposed rule, that higher wage levels in the DOL system equate to higher skill and greater economic value. “USCIS used its framing to justify weighting the lottery in favor of Level III and IV beneficiaries. Wage levels don’t correspond to skill in the way USCIS suggests, and instead they correspond to how DOL has structured job progression for prevailing wage purposes.”
According to Goel, the two systems are incompatible because the DOL wage levels are only focused on ensuring that employer pay for foreign nationals is fair relative to the job requirements. “USCIS lottery weighting attempts to twist those same levels into a proxy for ‘skill’ and ‘best and brightest,’” he said.
The New Immigration Rule Produces Significantly Different H-1B Lottery Outcomes
Critics point out a significant shortcoming of the weighting system in the proposed rule is that it establishes, for H-1B selection purposes, that foreign nationals paid a Level IV wage are four times more valuable to the United States than people paid a Level I wage, or twice as beneficial as someone paid at a Level II wage, without evidence in the proposed rule to support this contention. Employers and attorneys argue that the four DOL wage levels primarily consider an individual’s current level of experience in the labor market, not their talent or potential contributions. DOL lists employees at Level IV as people who “generally have management and/or supervisory responsibilities.”
As a practical matter, the proposed rule makes it much more likely that a U.S. company could hire foreign-born senior managers on H-1B petitions than promising recent international students graduating from U.S. universities with degrees in a field such as artificial intelligence. Analysts say shifting the H-1B selection using a Department of Labor salary scale that identifies the amount of experience to fill a position changes the country’s talent acquisition policy toward mid-career professionals rather than encouraging companies to foster more innovation within the United States.
As the NFAP analysis notes, the percentage change in the probability of being selected in the H-1B lottery may be the best indicator of the rule’s impact. Under the proposed rule, the probability of USCIS selecting an individual at Level IV for an H-1B petition would increase by 107% but fall by 48% for individuals at Level I. The probability of USCIS selecting an H-1B petition would increase by 55% for individuals at Level III and by 3% for individuals at Level II.
Another way to compare the current and proposed systems: Currently, individuals at all four salary levels have a 29.59% chance of being selected for an H-1B petition, according to USCIS. However, under the proposed rule, someone at Level I would see their selection chances drop to only 15.29%. In comparison, individuals at Level IV would see the probability of being selected surge to 61.16%. Individuals at Level III would see their opportunity of being selected increase to 45.87% under the proposed rule, and H-1B registrants at Level II would experience a slight increase to 30.58%.
The National Foundation for American Policy discovered an error in calculations in Tables 13 and 14 of the proposed rule that resulted in USCIS understating the negative impact of the new system on individuals at Level I and the benefit the proposed rule provides to individuals at Level III and Level IV. (Table 13, line F was incorrectly calculated.) After correcting for the USCIS error, 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.
The more USCIS gears H-1B selection against Level I, the fewer international students are likely to gain H-1B status. An examination of data on 170 F-1 students from the law firm Curran, Berger & Kludt, provided to NFAP, found 53% of international students were paid at level I and 37% were paid at Level II (i.e., 90% combined) in applications for H-1B cap selection from FY 2018 through FY 2021. A survey of international graduate students at U.S. universities conducted by the Institute for Progress and NAFSA: Association of International Educators found “53% of respondents said they would not have enrolled in the first place if access to H-1B was determined by Wage Levels.”
Legal Challenges Expected To The Immigration Rule
The proposed rule to change the H-1B lottery, like many other Trump administration policies, is expected to be challenged in court. The Trump administration unsuccessfully attempted to finalize a similar rule in 2021. Comments made to that rule, which used a different mechanism to shift H-1B selection toward individuals paid at Level III and Level IV, asserted that it violated U.S. immigration law.
“Congress spoke directly and clearly by stating that H-1B petitions were subject to a numerical limit and would be considered not by order of skill or wage levels, by relative value to the U.S. economy, or by any other prioritizing criterion other than filing order,” according to a comment signed by the American Immigration Lawyers Association and other organizations. “This is unambiguous in the statute where the INA establishes that consideration for an H-1B visa or status ‘shall’ be ‘in the order in which petitions are filed.’” The Compete America Coalition, FWD.us, NAFSA, National Immigration Forum, TechNet, the U.S. Chamber of Commerce and others also signed the comment.
In January 2019, DHS established by regulation the H-1B registration system. When a commenter suggested the Trump administration prioritize H-1B petitions based on salary or other criteria, officials responded that it would be unlawful under U.S. immigration law: “DHS believes, however, that prioritization of selection on other bases such as those suggested by the commenters would require statutory changes.”
