By Vishal Chander
On December 23, 2025, U.S. Citizenship and Immigration Services (USCIS) announced changes to the cap-subject H-1B selection process which prioritize higher-paid and higher-skilled workers. USCIS will utilize the Department of Labor Occupational Employment and Wage Statistics (OEWS) wage levels to multiply the number of registrations entered for each beneficiary by the wage level number. An H-1B job offer with an OEWS Wage Level of IV would give the H-1B beneficiary 4 entries into the H-1B registration system.
The final rule will be published on December 29, 2025 and intended to apply to the upcoming FY2027 (2026) H-1B Registration. USCIS states the weighted selection process will maintain opportunity for employers to secure H-1B workers at all wage levels and better serve the congressional intent of the H-1B program. USCIS argues the changes will disincentivize abuses of the H-1B program to fill relatively lower-paid and lower-skilled positions.
Effective Bar on F-1/OPT Graduates
The new rules will limit selection of F-1 graduates of U.S. universities in the H-1B lottery. Most job offers to F-1 graduates of U.S. universities are entry level positions that would receive OEWS Wage Levels of I or II. These job offers made to F-1/OPT graduates would receive the lowest priority under the weighted system.
Positions in Data Science and AI Impacted
The rule may impact U.S. competitiveness in data science and AI industries. Many entry level occupations in data science and AI require higher degrees. Occupations like Quantitative Analysts, Statisticians, Mathematicians, Operations Research Analysts, and Computer and Information Research Scientists require PhDs or Masters degrees as a minimum requirement for entry into the role. Positions like these, which are instrumental to data science and AI, will receive the lowest priority under the weighted system.
Gaming the New System Easy for Bad Actors
The new rules will incentivize gaming of the system by bad actors. To circumvent the weighted system, bad actors will use two different entities to file two different job offers for an H-1B beneficiary – one with a Wage Level IV and one with a Wage Level I. If the H-1B beneficiary were selected, the Wage Level IV job offer would be withdrawn and an H-1B petition would be filed for the Wage Level I job offer.
Important Changes for H-1B Employers in 2026
Employers interested in filing registrations for potential H-1B workers in 2026 should prepare early. The position description and job requirements will need to be set before the H-1B registration is submitted so that the OEWS Wage Level can be included in the H-1B registration for any worker. Employers should reach out to immigration lawyers as soon as possible to start preparing for the coming H-1B registration period.
Vishal Chander
The Chander Law Firm PC
469 Fashion Avenue 12th Floor
New York, New York 10018
Phone: (212) 731-2444
http://www.chanderlaw.com
