Rule2025-23853
Weighted Selection Process for Registrants and Petitioners Seeking To File Cap-Subject H-1B Petitions
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
December 29, 2025
Effective
February 27, 2026
Issuing agencies
Homeland Security Department
Abstract
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.
Full Text
<html>
<head>
<title>Federal Register, Volume 90 Issue 245 (Monday, December 29, 2025)</title>
</head>
<body><pre>
[Federal Register Volume 90, Number 245 (Monday, December 29, 2025)]
[Rules and Regulations]
[Pages 60864-60967]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-23853]
[[Page 60863]]
Vol. 90
Monday,
No. 245
December 29, 2025
Part II
Department of Homeland Security
-----------------------------------------------------------------------
8 CFR Part 214
Weighted Selection Process for Registrants and Petitioners Seeking To
File Cap-Subject H-1B Petitions; Final Rule
Federal Register / Vol. 90 , No. 245 / Monday, December 29, 2025 /
Rules and Regulations
[[Page 60864]]
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
[[Page 60865]]
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
[[Page 60866]]
[GRAPHIC] [TIFF OMITTED] TR29DE25.002
[[Page 60867]]
[GRAPHIC] [TIFF OMITTED] TR29DE25.003
[[Page 60868]]
[GRAPHIC] [TIFF OMITTED] TR29DE25.004
[[Page 60869]]
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.'').
---------------------------------------------------------------------------
<bullet> 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;
<bullet> 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;
<bullet> 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;
<bullet> 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;
<bullet> Section 214(i) of the INA, 8 U.S.C. 1184(i), which sets
forth the definition and requirements of a ``specialty occupation'';
<bullet> 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]'';
<bullet> 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]'';
<bullet> 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'';
<bullet> 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.''
---------------------------------------------------------------------------
<bullet> 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
[[Page 60870]]
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), <a href="https://bipartisanpolicy.org/wp-content/uploads/2019/03/BPC-Immigration-Legislation-Brief.pdf">https://bipartisanpolicy.org/wp-content/uploads/2019/03/BPC-Immigration-Legislation-Brief.pdf</a>, 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), <a href="https://www.congress.gov/crs-product/R47159">https://www.congress.gov/crs-product/R47159</a>.
---------------------------------------------------------------------------
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
[[Page 60871]]
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), <a href="https://www.epi.org/publication/h-1b-visas-and-prevailing-wage-levels/">https://www.epi.org/publication/h-1b-visas-and-prevailing-wage-levels/</a>
(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), <a href="https://cis.org/Report/Elon-Musk-Right-about-H1Bs">https://cis.org/Report/Elon-Musk-Right-about-H1Bs</a> (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), <a href="https://www.barrons.com/articles/SB50001424052748703578204578523472393388746">https://www.barrons.com/articles/SB50001424052748703578204578523472393388746</a> (``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), <a href="https://cis.org/Report/H1Bs-Still-Not-Best-and-Brightest">https://cis.org/Report/H1Bs-Still-Not-Best-and-Brightest</a> (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), <a href="https://eig.org/wp-content/uploads/2025/01/Exceptional-by-Design.pdf">https://eig.org/wp-content/uploads/2025/01/Exceptional-by-Design.pdf</a> (``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), <a href="https://www.epi.org/publication/h-1b-visas-and-prevailing-wage-levels/">https://www.epi.org/publication/h-1b-visas-and-prevailing-wage-levels/</a>.
\14\ See Muzaffar Chishti & Stephen Yale-Loehr, Migration Policy
Institute, The Immigration Act of 1990: Unfinished Business a
Quarter-Century Later (July 2016), <a href="https://www.migrationpolicy.org/sites/default/files/publications/1990-Act_2016_FINAL.pdf">https://www.migrationpolicy.org/sites/default/files/publications/1990-Act_2016_FINAL.pdf</a> (``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
[[Page 60872]]
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), <a href="https://www.epi.org/publication/h-1b-visas-and-prevailing-wage-levels">https://www.epi.org/publication/h-1b-visas-and-prevailing-wage-levels</a>.
---------------------------------------------------------------------------
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-
[[Page 60873]]
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, <a href="https://nyfed.org/collegelabor">https://nyfed.org/collegelabor</a> (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
[[Page 60874]]
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),
<a href="https://www.epi.org/publication/h-1b-visas-and-prevailing-wage-levels">https://www.epi.org/publication/h-1b-visas-and-prevailing-wage-levels</a>. (``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
[[Page 60875]]
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), <a href="https://www.whitehouse.gov/articles/2025/08/trump-effect-a-running-list-of-new-u-s-investment-in-president-trumps-second-term/">https://www.whitehouse.gov/articles/2025/08/trump-effect-a-running-list-of-new-u-s-investment-in-president-trumps-second-term/</a>;
Forbes, International Companies Bet Big On America: A New Wave Of US
Jobs (Mar. 31, 2025), <a href="https://www.forbes.com/sites/jackkelly/2025/03/31/international-companies-bet-big-on-america-a-new-wave-of-us-jobs/">https://www.forbes.com/sites/jackkelly/2025/03/31/international-companies-bet-big-on-america-a-new-wave-of-us-jobs/</a>; Praveen Paramasivam, Reuters, India's Tata Tech to hire more
locals in US as Trump cracks down on immigration (Oct. 22, 2025),
<a href="https://www.reuters.com/world/india/indias-tata-tech-hire-more-locals-us-trump-cracks-down-immigration-2025-10-23/">https://www.reuters.com/world/india/indias-tata-tech-hire-more-locals-us-trump-cracks-down-immigration-2025-10-23/</a>; Craig Hale,
Techradar Pro, Meta says it wants to invest $600 billion in US
infrastructure and jobs by 2028 (Nov. 10, 2025), <a href="https://www.techradar.com/pro/meta-says-it-wants-to-invest-usd600-billion-in-us-infrastructure-and-jobs-by-2028">https://www.techradar.com/pro/meta-says-it-wants-to-invest-usd600-billion-in-us-infrastructure-and-jobs-by-2028</a>.
\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), <a href="https://www.mercatus.org/research/policy-briefs/unintended-consequences-restrictions-h-1b-visas">https://www.mercatus.org/research/policy-briefs/unintended-consequences-restrictions-h-1b-visas</a>.
---------------------------------------------------------------------------
Comment: Several commenters said large IT companies or outsourcing
firms
[[Page 60876]]
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), <a href="https://ifp.org/the-wage-level-mirage/">https://ifp.org/the-wage-level-mirage/</a>.
---------------------------------------------------------------------------
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), <a href="https://ifp.org/the-wage-level-mirage/">https://ifp.org/the-wage-level-mirage/</a>.
---------------------------------------------------------------------------
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,
[[Page 60877]]
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
[[Page 60878]]
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), <a href="https://ifp.org/the-wage-level-mirage/">https://ifp.org/the-wage-level-mirage/</a>.
---------------------------------------------------------------------------
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
[[Page 60879]]
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 <a href="https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations/h-1b-electronic-registration-process">https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations/h-1b-electronic-registration-process</a> (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, <a href="https://nyfed.org/collegelabor">https://nyfed.org/collegelabor</a> (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
[[Page 60880]]
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), <a href="https://ifp.org/the-wage-level-mirage/">https://ifp.org/the-wage-level-mirage/</a>.
---------------------------------------------------------------------------
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), <a href="https://ifp.org/the-wage-level-mirage/">https://ifp.org/the-wage-level-mirage/</a>.
---------------------------------------------------------------------------
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
[[Page 60881]]
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), <a href="https://ifp.org/wp-content/uploads/2025-Surveys-on-International-Talent-Pipelines-1.pdf">https://ifp.org/wp-content/uploads/2025-Surveys-on-International-Talent-Pipelines-1.pdf</a>.
---------------------------------------------------------------------------
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
[[Page 60882]]
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 <a href="https://opendoorsdata.org/data/international-students/enrollment-trends/">https://opendoorsdata.org/data/international-students/enrollment-trends/</a> (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),
<a href="https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations/h-1b-electronic-registration-process">https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations/h-1b-electronic-registration-process</a> (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),
<a href="https://www.iie.org/wp-content/uploads/2022/12/International-Students-in-the-US.pdf">https://www.iie.org/wp-content/uploads/2022/12/International-Students-in-the-US.pdf</a>. 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.
[[Page 60883]]
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.\35\
---------------------------------------------------------------------------
\33\ See, e.g., Adam Hardy, Money, Recent College Grads are
Discovering That a STEM Degree Doesn't Guarantee a Stable Job (May
30, 2025), <a href="https://money.com/college-grads-stem-degrees-unemployed/">https://money.com/college-grads-stem-degrees-unemployed/</a>
(citing data from the Federal Reserve Bank of New York and separate
data from the National Association of Colleges and Employers (NACE)
reflecting declining career prospects for U.S. graduates with
bachelor's degrees in certain STEM majors, including computer/
information sciences and mathematics/statistics); Andrew Mark
Miller, Fox News, `3 headed monster': Expert reveals how H-1B visa
program is crushing American college graduates (Oct. 27, 2025),
<a href="https://www.foxnews.com/politics/expert-reveals-3-headed-monster-crushing-american-college-graduates-as-trump-makes-strikes-on-h1b-visas">https://www.foxnews.com/politics/expert-reveals-3-headed-monster-crushing-american-college-graduates-as-trump-makes-strikes-on-h1b-visas</a> (``unemployment rate for college graduates with those degrees
is significantly higher than the average for all college graduates
and there is a ``concerning'' level of unemployment with college
graduates in IT.'').
\34\ Federal Reserve Bank of New York, The Labor Market for
Recent College Graduates, <a href="https://nyfed.org/collegelabor">https://nyfed.org/collegelabor</a> (last
updated Aug. 1, 2025) (data from 2023).
\35\ See, e.g., Ron Hira, Is There Really a STEM Workforce
Shortage? Issues in Science and Technology (Summer 2022), <a href="https://issues.org/stem-workforce-shortage-data-hira/">https://issues.org/stem-workforce-shortage-data-hira/</a> (Unemployment rates
for computer occupations indicates that ``there are too many
educated, experienced STEM workers who are trying to find a job;
there is not a shortage of them.''); Rachel Rosenthal, Bloomberg,
Tech Companies Want You to Believe America Has a Skills Gap But what
they really want is a steady supply of cheap, dependent IT workers
(Aug. 4, 2020), <a href="https://www.bloomberg.com/opinion/articles/2020-08-04/big-tech-wants-you-to-believe-america-has-a-skills-gap">https://www.bloomberg.com/opinion/articles/2020-08-04/big-tech-wants-you-to-believe-america-has-a-skills-gap</a> (``The IT
industry is `awash with supply' and citing data that ``U.S. students
are both interested and capable of doing this kind of work'');
Steven Camarota, Center for Immigration Studies, New data show no
STEM worker shortage (Sept. 17, 2024), <a href="https://cis.org/Oped/New-data-show-no-STEM-worker-shortage">https://cis.org/Oped/New-data-show-no-STEM-worker-shortage</a>.
---------------------------------------------------------------------------
Second, companies that have historically relied on a steady pool of
lower-skilled, lower-wage foreign STEM workers could instead be
incentivized to hire highly skilled foreign workers who would be more
likely to supplement, rather than replace, U.S. workers. Many of these
companies are the same companies that have laid off their U.S. workers
and replaced them with low-paid H-1B workers. Again, as highlighted in
the H-1B Proclamation, reports indicate that many U.S. tech companies
have laid off their qualified and highly skilled U.S. workers and
simultaneously hired thousands of H-1B workers.\36\ 90 FR 46027 (Sept.
24, 2025). Information technology firms, in particular, have
prominently manipulated the H-1B system, significantly harming U.S.
workers in computer-related fields. The high numbers of relatively low-
wage workers in the H-1B program undercut the integrity of the program
and are detrimental to U.S. workers' wages and labor opportunities,
especially at the entry level, in industries where such low-paid H-1B
workers are concentrated. In fact, workers in computer related fields
have seen virtually no real wage growth in decades; and real wages for
all types of engineers as well as several other STEM occupations,
including software developers, have stagnated or even declined in the
past decades.\37\
---------------------------------------------------------------------------
\36\ See, e.g., Crunchbase, The Crunchbase Tech Layoffs Tracker
(last updated Nov. 19, 2025), <a href="https://news.crunchbase.com/startups/tech-layoffs/">https://news.crunchbase.com/startups/tech-layoffs/</a>; Daniel Costa & Ron Hira, Tech and outsourcing
companies continue to exploit the H-1B visa program at a time of
mass layoffs (Apr. 11, 2023), <a href="https://www.epi.org/blog/tech-and-outsourcing-companies-continue-to-exploit-the-h-1b-visa-program-at-a-time-of-mass-layoffs-the-top-30-h-1b-employers-hired-34000-new-h-1b-workers-in-2022-and-laid-off-at-least-85000-workers/">https://www.epi.org/blog/tech-and-outsourcing-companies-continue-to-exploit-the-h-1b-visa-program-at-a-time-of-mass-layoffs-the-top-30-h-1b-employers-hired-34000-new-h-1b-workers-in-2022-and-laid-off-at-least-85000-workers/</a>; Reuters,
Lawmakers seek answers from major US firms over H-1B visa use amid
layoffs (Sept. 25, 2025), <a href="https://www.reuters.com/business/finance/us-lawmakers-scrutinize-tech-firms-over-h-1b-visa-use-amid-other-job-layoffs-wsj-2025-09-25/">https://www.reuters.com/business/finance/us-lawmakers-scrutinize-tech-firms-over-h-1b-visa-use-amid-other-job-layoffs-wsj-2025-09-25/</a>.
\37\ See, e.g., Ron Hira, Is There Really a STEM Workforce
Shortage? Issues in Science and Technology, (Summer 2022), <a href="https://issues.org/stem-workforce-shortage-data-hira/">https://issues.org/stem-workforce-shortage-data-hira/</a> (``After accounting
for inflation, real wage growth was minimal or negative: real wages
for computer and mathematical occupations declined by 0.4% over the
five-year period [between 2016 and 2021].''); Hal Salzman, Daniel
Kuehn, & B. Lindsay Lowell, Economic Policy Institute, Guestworkers
in the high-skill U.S. labor market (Apr. 24, 2013), <a href="https://www.epi.org/publication/bp359-guestworkers-high-skill-labor-market-analysis/">https://www.epi.org/publication/bp359-guestworkers-high-skill-labor-market-analysis/</a> (``Wages have remained flat, with real wages hovering
around their late 1990s levels'' and concluding that ``the United
States has more than a sufficient supply of workers available to
work in STEM occupations.'').
---------------------------------------------------------------------------
9. Negative Impacts on Academic Institutions
Comment: Some commenters expressed concern that the proposed
weighted H-1B selection process would negatively impact U.S.
universities and higher education institutions. Commenters stated that
the rule would reduce the attractiveness of U.S. universities for
international students and undermine the competitiveness of U.S. higher
educational institutions. Commenters stated that international students
provide essential tuition revenue for U.S. universities, which this
rule would threaten. At least one commenter claimed that international
students essentially subsidize domestic students at U.S. colleges and
universities, making it cheaper for U.S.-born students to receive
higher education and cushioning public universities' budgets in the
face of declining state appropriations. Some commenters acknowledged
that U.S. institutions of higher education are exempt from the H-1B
cap, but that the proposed changes to the H-1B selection process would
still have negative, and potentially long-term, effects on U.S. higher
education. A commenter mentioned that the U.S. higher education system
would be destabilized by the proposed rule as it recovers from low
enrollment and financial strain due to the Coronavirus Disease of 2019
(COVID-19) pandemic. Commenters also noted that international students
provide other types of benefits to educational institutions and their
surrounding communities, including exposure to new ideas and cultures.
A commenter referenced a survey conducted by NAFSA estimating a
possible 30 to 40 percent drop in foreign student enrollment for the
2025-2026 academic year, which could have a significant impact on the
U.S. economy.
Response: DHS does not believe that this rule will have a
significant negative impact on the ability of U.S. colleges and
universities to recruit talented international students. To the
contrary, DHS believes this rule is more likely to enhance an academic
institution's ability to attract the best and brightest international
students through offering them an increased chance of H-1B employment
if they secure a job offer at a salary that corresponds to a higher
wage level. To the extent that this change will negatively affect the
ability of some colleges and universities to recruit lower-skilled or
less-experienced international students, DHS believes that any such
harm will be outweighed by the benefits of better ensuring that initial
H-1B visas and status grants
[[Page 60884]]
would more likely go to higher-paid, higher-skilled beneficiaries.
Facilitating the admission of higher-skilled foreign workers, as
indicated by their earning of wages that equal or exceed higher
prevailing wage levels, 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 discussed in the NPRM. Concerning the survey the
commenter referenced, the commenter did not indicate that there was a
correlation between the potential change in international student
enrollment and this rule.\38\ Further, DHS expects this rule to have a
positive effect on the economy, which could counteract any negative
economic effects caused by a potential drop in enrollment. Regarding
the cultural benefits that international students provide, DHS
reiterates that this rule will not ban international students from
coming to or remaining in the United States, so this aspect is unlikely
to be affected.
---------------------------------------------------------------------------
\38\ The commenter cited to a Fall 2025 International Student
Enrollment Outlook and Economic Impact survey conducted by NAFSA:
Association of International Educators (Aug. 8, 2025), <a href="https://www.nafsa.org/fall-2025-international-student-enrollment-outlook-and-economic-impact">https://www.nafsa.org/fall-2025-international-student-enrollment-outlook-and-economic-impact</a>. DHS reviewed the survey. The survey listed four
factors as driving the claimed decline in international student
enrollment: visa interview suspension, limited appointment
availability, visa issuance trends, and visa bans. All four factors
specifically relate to visa issues, not the H-1B registration
process.
---------------------------------------------------------------------------
Comment: Commenters remarked that this rule would negatively impact
U.S. universities to attract the best students because many students
select the United States for the opportunity to work in the United
States following graduation. Some of these commenters specifically
addressed the OPT program and the possibility of F-1 students
transitioning to an H-1B visa. The commenters stated that this rule
risks deterring international students who wish to study in the United
States specifically because of the prospect of OPT employment. Some
commenters stated that the proposed rule would create a policy
contradiction: the government issues student visas, allows OPT, and
promotes U.S. degrees as a pathway to opportunity, but then erects a
barrier to getting the first job.
Response: DHS does not believe that this rule creates a policy
contradiction or threatens the pipeline of students who wish to study
in the United States. 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 F-1 nonimmigrant
status. Further, this rule has no impact on OPT. 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 getting a
job on OPT or transitioning to H-1B nonimmigrant status. Rather, as
explained previously, for international students who are offered jobs
with a salary that corresponds to a higher wage level, this rule
increases their chance for selection in the H-1B cap selection process
as compared to their chances in the current random selection process.
Comment: Some commenters opposed the proposal because they reasoned
it would harm research, stating that universities and research labs
depend on international students and graduates. For instance, a
commenter stated that entry-level graduates are essential to the future
of the U.S. workforce as they often work in research labs, develop new
technologies, and fill important roles. Another commenter said master's
and Ph.D. graduates perform a disproportionate share of research labor
and contribute to Federal grant deliverables, and denying them
equitable access to H-1B visas reduces the return on public and private
educational spending. A different commenter noted that research labs
depend on international workers, and that if research labs cannot
obtain the foreign workers they need, then this rule could also harm
U.S. students who wish to work in research labs after graduation.
Similarly, a commenter wrote that the large population of international
students in STEM doctoral programs and federally funded labs generate
patents, publications, and breakthroughs, significantly contributing to
U.S. scientific discovery. The commenter stated discoveries in labs can
emerge from researchers who begin in wage level I positions and
eliminating these positions through the proposed rule would lead to
fewer advancements, and reduced U.S. influence in global research.
Response: DHS disagrees with the assertions that this rule will
harm research or research facilities. The weighted selection process
implemented through this rule impacts the probability of selection
towards the H-1B cap. H-1B petitions for aliens who are employed by, or
have received offers of employment at, U.S. institutions of higher
education, nonprofit entities related to or affiliated with U.S.
institutions of higher education, or nonprofit research organizations
or governmental research organizations are exempt from the H-1B cap.
See INA sec. 214(g)(5), 8 U.S.C. 1184(g)(5). Many employers and aliens
described by these commenters would be cap-exempt and therefore not
impacted by this rule. In FY 2025 alone, USCIS approved over 49,000
petitions that qualified under one of these cap exemptions.\39\ In the
scenarios where researchers are not cap-exempt, DHS believes this rule
will have a positive impact by increasing the chance of selection for
highly paid, highly skilled foreign researchers and encouraging
employers to hire American graduates for research positions instead of
lower-paid aliens. Additionally, DHS disagrees with the concern that
level I positions will be eliminated by this rule. The weighted
selection implemented through this rule favors 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.
---------------------------------------------------------------------------
\39\ DHS, USCIS, OPQ, CLAIMS 3 and ELIS, queried 10/2025,
PAER0019172. Approvals of Petitions from Cap Exempt Employers, By
Cap Exemption and New Employment and Renewal/Amendment Filings,
October 2025. This data shows the following breakdown for total cap-
exempt H-1B approvals in FY25: 24,835 for institutions of higher
education; 19,866 for affiliated or related nonprofit entities;
5,654 for nonprofit research organizations or governmental research
organizations; and 3,634 for beneficiaries employed at a qualifying
cap exempt entity. This data further shows total cap-exempt
approvals in the above categories as follows: 25,452 for New
Employment and 23,901 for Renewals/Amendments. Some petitioners
selected ``Yes'' on multiple questions, which is why the totals are
higher than the sum of the individual categories.
---------------------------------------------------------------------------
Comment: Some commenters said the rule would decrease U.S.
universities' access to or ability to recruit international faculty.
One commenter asserted that wage-based weighting could exacerbate
dental faculty shortages at schools accredited by the Commission on
Dental Accreditation and could thereby limit access to dental
education.
Response: DHS disagrees that this rule will decrease the ability of
academic institutions to recruit or retain international faculty.
Again, this rule will increase the chance of selection for those who
will be paid a wage that corresponds to higher wage levels and thus is
more likely to facilitate the selection of higher paid, higher skilled
international faculty for cap-subject H-1B status.
Also, many petitions for U.S. universities and other academic
institutions of higher learning will likely not be affected by this
rule. Congress already exempted from the annual H-1B cap aliens who are
employed by, or have received offers of employment at, U.S.
institutions of higher education, nonprofit entities
[[Page 60885]]
related to or affiliated with U.S. institutions of higher education,
and nonprofit research organizations or government research
organizations. See INA sec. 214(g)(5), 8 U.S.C. 1184(g)(5). In FY 2025
alone, USCIS approved over 24,000 petitions for petitioners who were
cap exempt as an institution of higher education.\40\
---------------------------------------------------------------------------
\40\ DHS, USCIS, OPQ, CLAIMS 3 and ELIS, queried 10/2025,
PAER0019172. Approvals of Petitions from Cap Exempt Employers, By
Cap Exemption and New Employment and Renewal/Amendment Filings,
October 2025.
---------------------------------------------------------------------------
Comment: Some commenters expressed concern that the proposed
weighted selection process would negatively impact public and private
schools that are already experiencing difficulties recruiting qualified
K-12 teachers in certain areas, such as STEM subjects. Some of these
commenters specifically noted the difficulties faced by public schools,
particularly in rural, low income, or other underserved communities.
These commenters stated that the rule would harm such schools, leaving
them without critical staff. Another commenter, expressing concern over
the rule's impact on public schools, stated that public school
districts cannot adjust salaries to compete for higher wage levels,
because teacher compensation is determined by state or district salary
schedules which are established through statute or collective
bargaining. The commenter emphasized the importance of prioritizing all
qualified educators, including those at entry or mid-career level
likely to be at level I or level II wage levels.
Response: Some public schools may be exempt from the H-1B cap based
on their affiliation with U.S. institutions of higher education. For
those public or private schools that are not cap-exempt and are unable
to proffer wages that equal or exceed prevailing wage levels with
greater chances of selection, including those with compensation levels
outside of the employer's control, they may be able to find available
and qualified workers outside of the H-1B program, including U.S.
workers.
10. Negative Impacts on the Healthcare Sector
Comment: Multiple commenters said the proposed rule would have a
negative impact on the healthcare sector. A commenter stated that
International Medical Graduates (IMGs) \41\ account for significant
portions of healthcare personnel, with others noting that H-1Bs are
heavily utilized in the field. Some commenters stated that when
hospitals face staffing shortages, in specialized areas and generally,
international medical professionals help fill gaps in the workforce and
that a weighted selection would limit access to qualified healthcare
workers. Some commenters cited a U.S. Department of Health and Human
Services statistic estimating a shortfall of around 187,000 physicians
by 2037. Another commenter also noted that the proposed rule could
encourage highly qualified, early-career physicians to practice in
other countries. A commenter noted that international doctors were
critical during COVID-19 and, without them, public health crises would
be harder to manage.
---------------------------------------------------------------------------
\41\ DHS notes that some commenters use the term International
Medical Graduate (IMG) when addressing this rule. DHS further notes
that, as stated in a study cited by a commenter, the term IMG may
refer to the location of a physician's medical school, rather than
citizenship, and as such IMGs may include U.S. citizens and other
aliens not seeking H-1B status. See Awad Ahmed, Wei-Ting Hwang, &
Charles R. Thomas Jr., Deville C. Jr., ``International Medical
Graduates in the US Physician Workforce and Graduate Medical
Education: Current and Historical Trends,'' Journal of Graduate
Medical Education (Apr. 1, 2018), <a href="https://jgme.kglmeridian.com/view/journals/jgme/10/2/article-p214.xml">https://jgme.kglmeridian.com/view/journals/jgme/10/2/article-p214.xml</a>. Regardless, DHS believes
responses in this rule sufficiently address commenters' concerns.
---------------------------------------------------------------------------
Numerous commenters remarked that critical fields, such as
healthcare, may offer lower starting salaries compared to other sectors
and said that the proposed rule would ``restrict access to
international experts'' who rely on H-1B visas to work in these
sectors. Another commenter, expressing concern about eliminating a
healthcare talent pipeline, wrote that healthcare professionals in
their required training period are in level I or level II positions and
that level I wages reflect the cost structure of supervised practice.
Another commenter, using the healthcare industry as an example of
industries whose wage structures are incompatible with the proposed
rule, wrote that medical residents and fellows, despite being some of
the most highly educated workers in the United States, earn wages that
would typically be categorized as level I, leading to a reduced
probability of being granted H-1B status and an exacerbation of the
physician shortage.
More than one commenter wrote that hospitals and healthcare systems
cannot easily meet higher wage levels or absorb compliance costs,
particularly small to mid-sized healthcare providers. Another commenter
remarked that the OEWS system under the proposed rule does not reflect
healthcare compensation schemes, which often use standardized pay
scales determined by facility budgets and Medicare reimbursement. One
commenter predicted that adoption of the final rule would lead to
consolidation in the healthcare field and higher costs for patients.
Another commenter suggested that non-profit hospitals, even in urban
areas, would be at a disadvantage compared to for-profit corporations,
creating disparities within the same city.
A commenter noted that wages for physicians vary by medical
specialty. The commenter expressed concern about the impacts of the
rule on primary care physicians, stating that primary care physicians'
wages tend to be lower than the wages of procedure-oriented
specialists. The commenter stated the rule could incentivize IMGs to
apply for higher paying subspecialty positions to increase their chance
of selection, which would further exacerbate shortages in lower paying
specialties. The commenter stated that the rule will exacerbate
shortages in nephrologists and thus lead to an increase in mortality
for people burdened by kidney disease.
Similarly, another commenter expressed concern that the new rule
would disproportionately disadvantage dentists serving in community
health centers and public hospitals and could worsen access to dental
care for vulnerable populations, including in underserved and rural
areas. The commenter stated that many federally qualified health
centers that employ H-1B dentists operate on fixed budgets and cannot
match salaries offered by private or technology sectors.
Response: DHS disagrees that this rule will negatively affect the
healthcare sector. Many H-1B petitions for healthcare workers are cap-
exempt. From FY 2020 through FY 2025, more than 94 percent of H-1B
petitions approved for initial employment for physicians, surgeons, and
dentists were cap-exempt and thus not subject to the H-1B cap selection
process.\42\ In addition, Congress has established programs meant to
encourage certain recent foreign medical graduates to serve in the
United States as H-1B nonimmigrants. These programs are exempt from the
annual H-1B cap and unaffected by this rule. Certain J-1 exchange
visitors are subject to a 2-year
[[Page 60886]]
foreign residence requirement under INA sec. 212(e), 8 U.S.C. 1182(e),
which requires them to return to their country of nationality or
country of last residence for at least two years in the aggregate prior
to being eligible to apply for an immigrant visa; adjustment of status;
or certain nonimmigrant visas, including H-1B visas (with limited
exceptions). See INA sec. 212(e), 8 U.S.C. 1182(e); INA sec. 248, 8
U.S.C. 1258. However, INA sec. 214(l), 8 U.S.C. 1184(l), contains
provisions authorizing waivers of the 2-year foreign residence
requirement for certain aliens, including foreign medical graduates who
agree to work full-time (at least 40 hours per week) in H-1B
classification for not less than three years in a shortage area
designated by the U.S. Department of Health and Human Services (HHS)
with a request from an interested Federal Government agency or state
agency of public health or its equivalent, or with the U.S. Department
of Veterans Affairs. See INA sec. 214(l), 8 U.S.C. 1184(l). See also 8
CFR 212.7(c)(9). The petition requesting a change to H-1B nonimmigrant
status for these physicians is not subject to the numerical limitations
contained in INA sec. 214(g)(1)(A), 8 U.S.C. 1184(g)(1)(A). See INA
sec. 214(l)(2)(A), 8 U.S.C. 1184(l)(2)(A). While participation in the
Conrad 30 program (relating to waivers based on requests from a state
agency of public health or its equivalent for service in an HHS-
designated shortage area) is limited to 30 participants per eligible
jurisdiction annually, the other programs have no limits on the number
of participants. See INA sec. 214(l)(1)(B), 8 U.S.C. 1184(l)(1)(B).
---------------------------------------------------------------------------
\42\ DHS, USCIS, OPQ, Approvals for New Employment with a DOT
Code of 070, 071, 072 Listed by Whether Cap Exempt, Receipt Fiscal
year 2020 through 2025. CLAIMS3, ELIS, queried 10/2025, PAER0019171,
showing that, from FY 2020 through FY 2025, on average more than 94
percent of H-1B petitions approved for initial employment for
physicians, surgeons, and dentists were cap-exempt and not subject
to the H-1B cap selection process). See also 86 FR 1676, 1682 (Jan.
8, 2021) (``Importantly, according to DHS data, in FY 2019, more
than 93 percent of H-1B petitions approved for initial employment
for physicians, surgeons, and dentists were cap-exempt and thus not
subject to the H-1B cap selection process.'').
---------------------------------------------------------------------------
In the scenarios where they are not cap-exempt, DHS believes this
rule may have a positive impact for some highly skilled, highly paid
aliens. DHS notes that shortages of medical professionals are multi-
causal and beyond the scope of one visa category to address. With
respect to the ability to offer increased wages generally, DHS
acknowledges that healthcare institutions, like employers in all
industries, are impacted by a variety of factors in determining
employee salary. For employers unable to proffer wages that equal or
exceed prevailing wage levels with greater chances of selection, they
may be able to find available and qualified workers outside of the H-1B
program, including U.S. workers. Additionally, it is possible that
aliens filling the positions described by these commenters would be
eligible for alternate immigrant or nonimmigrant classifications
offering employment authorization.
Further, DHS disagrees with the comment that this rule may unfairly
discriminate against primary care physicians who typically have lower
annual salaries than certain specialty physicians. In general, family
physicians or other primary care physicians have different SOC codes
than specialty physicians. As DOL prevailing wage level calculations
generally differ by SOC codes, when wage data is available, the
corresponding wage level would necessarily account for the different
occupational classification for primary care physicians as opposed to
other types of physicians. When such wage level data is unavailable,
wage level weighting will be based on the skill, education, and
experience requirements for the position, again taking into account the
particulars of the relevant occupational classification, such that
registrations or petitions for primary care physicians will be weighted
in comparison to the normal requirements for primary care physicians
and not in comparison to other types of physicians. As such, DHS does
not believe that this rule will disadvantage registrations or petitions
for primary care physicians or any other subset of physicians.
Comment: Some commenters identified other employers and
professionals in the healthcare field who would be negatively impacted
by this rule, including nurses; pharmacists; laboratory technologists,
healthcare IT professionals working in data security, analytics, and
telehealth systems who are protecting patient data and furthering
innovation; and therapists and counselors providing mental health and
other services. Some commenters noted that those in emergency
preparedness fields who partner with healthcare workers will be
negatively impacted by this rule. These commenters generally stated
that the rule would make it financially and logistically difficult for
healthcare-related employers to recruit and retain essential staff.
Response: Overall, DHS believes this rule will have a positive
impact by increasing the chance of selection for the most highly
skilled, highly paid aliens within each SOC code and encouraging
companies to hire U.S. workers. For employers unable to proffer wages
that equal or exceed prevailing wage levels with greater chances of
selection, they may be able to find available and qualified workers
outside of the H-1B program, including U.S. workers. DHS notes that
shortages in the number, distribution, and specialties of medical
professionals are multi-causal and beyond the scope of one visa
category to address. DHS believes that this rule will promote the
interests of U.S. workers--and those students and trainees who are
future workers--in line with administration priorities. Additionally,
it is possible that aliens filling the positions described by these
commenters would be eligible for alternate immigrant or nonimmigrant
classifications offering employment authorization.
11. Negative Impacts on Rural or Underserved Communities
Comment: Multiple commenters stated that the proposed rule would
have a particularly negative impact on healthcare in rural and
underserved areas with one commenter noting the unique and complex
challenges faced by patients in rural areas. A commenter stated that in
falsely assuming high-skilled workers are paid a higher wage, the rule
devalues high-skilled physicians in underserved areas and could lead to
the consolidation of physicians in larger healthcare organizations,
leading to greater costs for patients. Some commenters expressed
specific concerns that underserved or rural areas that are reliant on
international doctors would face difficulties with or lose healthcare
access, with one commenter noting such areas could potentially face
facility closure. Without citing specific data, a commenter remarked
that IMGs are more likely to serve in rural and underserved areas
compared to their U.S. counterparts. The commenter said that the
proposed rule disincentivizes entering specialty programs with lower
wages, further exacerbating primary care shortages in rural and
underserved areas. Another commenter similarly opined that because U.S.
medical graduates typically apply for and locate in urban and higher-
income areas, when non-urban medical facilities lose access to IMGs
because of the proposed rule, they would struggle to find alternative
healthcare worker options. The commenter reasoned that the result would
be the closure of emergency rooms, obstetric services, and specialty
care, creating ``medical deserts'' that require rural residents to
travel hours for basic medical care.
Response: DHS acknowledges the important role that foreign
physicians may play in providing healthcare in rural and/or underserved
communities, including early career and entry level physicians. As
explained in response to the previous comments, Congress has
established programs meant to direct foreign medical graduates to those
communities.
[[Page 60887]]
As noted previously, physicians whose nonimmigrant status is
changed to H-1B through their participation in any of the three waiver
programs in INA sec. 214(l), 8 U.S.C. 1184(l), are not subject to the
annual H-1B caps. The Conrad 30 program (relating to waivers based on
requests from a state agency of public health or its equivalent for
service in an HHS-designated shortage area) is limited to 30
participants per eligible jurisdiction annually. See INA sec.
214(l)(1)(B), 8 U.S.C. 1184(l)(1)(B). However, there are no annual
limits on the number of aliens who can obtain a waiver through service
in an HHS-designated shortage area based on the request of an
interested Federal Government agency. Since these programs are not
subject to the annual H-1B caps, they will not be affected by this rule
and the programs will continue to provide a pipeline for these
physicians to serve in HHS-designated shortage areas.
Congress has established a similar statute in the immigrant
context, which also channels physicians to serve in HHS-designated
shortage areas, commonly known as the Physician National Interest
Waiver Program. See INA sec. 203(b)(2)(B)(ii)(I), 8 U.S.C.
1153(b)(2)(B)(ii). That program has no limits on the number of
physicians who can participate in a given fiscal year, though there are
numerical limitations on the number of employment-based immigrant visas
that can be allocated annually. This program is unaffected by this rule
and will continue to provide a pipeline for an unlimited number of
physicians to serve in HHS-designated shortage areas.
DHS acknowledges that some alien physicians seeking to serve in
rural or underserved areas would be subject to H-1B numerical
limitations. DHS is aware that medical institutions in rural or
underserved areas may not be U.S. institutions of higher education,
related or affiliated non-profit entities, or non-profit research
organizations or governmental research organizations and, as a result,
aliens who are employed by or who have received an offer of employment
from such medical institutions may not be exempt from the annual H-1B
numerical limitations under INA sec. 214(g)(5), 8 U.S.C. 1184(g)(5).
DHS also acknowledges that not all alien physicians who serve in rural
or underserved areas as H-1B nonimmigrants are participating in the
waiver programs of INA sec. 214(l), 8 U.S.C. 1184(l). However, some
medical institutions in rural or underserved areas do meet the
requirements to be cap-exempt, and their employees will not be subject
to the numerical limitations.\43\ To the extent these physicians are
subject to H-1B numerical limitations, DHS believes this rule will have
a positive impact by increasing the chance of selection for highly
skilled, highly paid aliens. Additionally, it is possible physicians
may avail themselves of alternative pathways to serve in these areas.
---------------------------------------------------------------------------
\43\ DHS, USCIS, OPQ, Approvals for New Employment with a DOT
Code of 070, 071, 072 Listed by Whether Cap Exempt, Receipt Fiscal
year 2020 through 2025. CLAIMS3, ELIS, queried 10/2025, PAER0019171,
showing that, from FY 2020 through FY 2025, on average more than 94
percent of H-1B petitions approved for initial employment for
physicians, surgeons, and dentists were cap-exempt and not subject
to the H-1B cap selection process).
---------------------------------------------------------------------------
Further, as with all other registrations, DHS will weigh and select
registrations for these positions generally according to the highest
OEWS prevailing wage level that the proffered wage equals or exceeds,
which necessarily takes into account the area of intended employment
when such wage level data is available. Where there is no current OEWS
prevailing wage information for the proffered position, which DHS
recognizes is the case for some physician positions based on
limitations in OEWS data, the registrant would follow DOL guidance on
prevailing wage determinations to determine which OEWS wage level to
select on the registration. The determination of the appropriate wage
level in those instances would be based on the skill, education, and
experience requirements of the position, and generally does not take
into consideration the area of intended employment. Therefore, DHS does
not believe that this rule necessarily will disadvantage rural and/or
underserved communities relative to registrations or petitions based on
offers of employment in other areas.
Comment: Expressing concern about the impact of the rule on rural
healthcare, a commenter pointed specifically to the impact on nurses in
H-1B status, stating that in fiscal year 2025, 34 out of the 367 nurses
they hired were on H-1B visas. The commenter interpreted data presented
in the NPRM as stating that nurses will be treated as a level I
position, disadvantaging them as compared to certain other SOC codes.
Response: DHS disagrees with the commenter's blanket assumption
that nurses will be treated as a level I position or will be
disadvantaged compared to other SOC codes. DHS aims 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, across all occupations. Under this rule,
registrations (or petitions, as applicable) will be weighted generally
based on the highest OEWS wage level that the prospective beneficiary's
proffered wage equals or exceeds for the relevant SOC code in the
area(s) of intended employment. Employers may choose to offer a higher
wage to a prospective beneficiary whose skill level they value and who
they wish to retain to increase that beneficiary's chances of
selection.
12. Negative Impact on Small Businesses, Startups, and Nonprofits
Comment: Several commenters said the proposed rule would have a
negative impact on small businesses, startups, and nonprofits. Multiple
commenters stated that smaller entities, startups, and nonprofits
cannot afford to pay higher wage levels compared to large corporations
and often rely on international talent or new graduates to support
their business. A commenter said that small businesses and startups
will not be able to afford such wage premiums, as they frequently
operate with limited capital while offering alternative incentives like
equity ownership, stock options, or future profit participation, which
would not be recognized under the proposed weighted-lottery selection
process. Similarly, commenters wrote that small companies typically
lack financial resources or legal staff compared to large corporations
with more resources. One commenter did an analysis to show that small
businesses would be disproportionately adversely affected by the
proposed weighting scheme. This analysis showed that since small
businesses disproportionately have petitions at wage levels I and II,
their projected share of H-1B visas would fall.
A few commenters specified that the burden of increased compliance,
including documenting wage levels, SOC codes, and matching registration
and petition data, may disproportionately strain small companies with
fewer resources and often without in-house legal or human resources
(HR) compliance teams.
One commenter remarked that the proposed rule may deter talented
workers who are seeking opportunities at small businesses or startups
that typically offer lower wages. Another commenter stated that
although the proposed weighted selection process will disadvantage all
U.S. companies that have talent needs that are not met by the domestic
labor market, the problem will be worse for smaller-sized employers,
and especially for small non-profit employers that are not cap-
[[Page 60888]]
exempt. Numerous commenters suggested that the proposed rule would
disadvantage veteran-owned businesses that are often small and benefit
from specialized international workers. Some commenters remarked that
nonprofits help underserved communities and without international
experts, vulnerable populations could suffer without support.
Response: This rule does not treat people who work for small
businesses, startups, non-profits, or other small-sized entities
(including veteran-owned businesses) differently than those who work
for large, established companies. While DHS recognizes that some small-
sized entities may operate on smaller margins than larger 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. This rule
will benefit those small entities that are applying for relatively
higher-paid employees, as they will have a greater chance of their
employees being selected compared to the current random selection
process. If a small-sized entity is unable to pay a beneficiary at a
higher wage level for a greater chance of selection, they could try to
find a U.S. worker. U.S. employers, including small-sized entities,
could also consider hiring recent American graduates to meet their
business needs while playing an integral part in the U.S. worker's
career growth.
DHS acknowledges that this final rule will have an economic impact
on small businesses, startups, or other small-sized entities that can
only offer a level I wage, as those registrations will have a lesser
chance of selection than under the current random selection process.
However, as explained in the NPRM, DHS conducted an initial regulatory
flexibility analysis and found no other alternatives that achieved the
stated objectives with less burden to small entities. 90 FR 45986,
46016 (Sept. 24, 2025). Given that 76 percent of unique cap-subject H-
1B filers are small entities, and 47 percent of H-1B cap petitions in
FY 2024 were filed by small entities, any alternative process that
provides a different, preferential weighting scheme for small entities
would undermine the overall utility of this rule, which is to generally
favor the allocation of H-1B visas to higher-skilled and higher-paid
aliens. And as mentioned previously, it is possible that any
alternative that imposes a lower burden on small entities generally
could also reduce those employers' chance of selection for higher wage
level workers.
DHS also disagrees that the burden of complying with the rule will
disproportionately affect smaller employers. As stated in the NPRM, DHS
estimates that the changes implemented in this rule would increase the
time burden by 20 minutes for each registration and by 15 minutes for
each petition, whether completed by an HR specialist, in-house lawyer,
or outsourced lawyer. If a smaller employer is using an outsourced
specialist for H-1B work in general, the additional paperwork burden
associated with this rule is unlikely to be substantial in most cases.
Finally, DHS does not believe this rule will have a significant
negative impact on nonprofit organizations. Congress already exempted
from the H-1B cap any alien who is employed or has received an offer of
employment at a U.S. institution of higher education, a non-profit
entity related or affiliated with a U.S. institution of higher
education, or a non-profit research organization or a governmental
research organization. See INA sec. 214(g)(5), 8 U.S.C. 1184(g)(5); 8
CFR 214.2(h)(8)(iii)(F). Thus, many petitions for nonprofits will not
be affected by this rule. For those nonprofit entities that are not
cap-exempt and are unable to proffer wages that equal or exceed
prevailing wage levels with greater chances of selection, they may be
able to find available and qualified U.S. workers.
13. Industry and Occupational Disparities
Comment: Some commenters expressed concern that the proposed rule
would disproportionately favor certain industries and occupations over
others, as some sectors have more financial resources and are more
readily able to absorb the costs associated with offering higher wages.
Some commenters said that industries with naturally higher wage
structures, such as technology and finance, would have an advantage
over sectors with lower prevailing wages, regardless of the importance
or skill level of the positions.
Other commenters asserted that the rule would put some industries
at a competitive disadvantage. Many commenters said that wage-based
selection would privilege existing high-income sectors and reinforce
barriers for professionals working in critical lower-paying fields,
positions that are often hard to fill and vital to U.S. long-term
competitiveness. Some commenters remarked that the proposed rule may
have a negative effect on the arts and other creative and recreational
endeavors in the United States. One commenter said that the rule will
harm educators, health care workers, and nonprofit professionals. A
commenter said that a wage-based selection system is biased against
certain professions, particularly lower-paying professions like
research, healthcare, urban planning, and civil engineering. This
commenter asserted that the additional financial burden of offering
higher wages would eliminate some industries' abilities to use the H-1B
program. Other commenters wrote that the rule creates a significant
bias towards large multinational technology corporations and disfavors
the engineering industry, which is already facing a critical labor
shortage. One commenter said that architecture, engineering, and
construction industries would be disadvantaged under the proposed
rule's weighting system, and another commenter suggested that every
engineering hire should be in a bracket based on the specific industry,
rather than all competing against software engineers. A few other
commenters discussed the rule's perceived disproportionate harm on
manufacturers, particularly on small- and medium-sized manufacturers
and manufacturers in the electro-industry, stating that many jobs in
the manufacturing industry fall into lower wage levels. A different
commenter suggested that employers, such as universities, hospitals,
regional service firms, and manufacturers that maintain distributed or
hybrid operations would be penalized. A commenter said that the
proposed rule unfairly disadvantages essential infrastructure and
public-interest professions--such as civil, structural, environmental,
and transportation engineering--whose wages are tied to public-sector
pay scales and regional cost-of-living differences rather than
individual skill or value to the nation. Citing data on median salaries
per wage level, another commenter stated that the proposed H-1B cap
selection process disadvantages innovative technology companies that
pay significantly higher wages even at lower wage levels, and remarked
that the proposed rule fails to fulfill President Trump's directive to
prioritize high-paid nonimmigrants, as it does not account for the
substantial wage differences between industries and employers at the
same wage level.
Other commenters expressed concern that the wage-based weighting
system would create a system that prioritizes ``roles less important to
U.S. interests.'' The commenters stated that, due to the complex nature
of wage level
[[Page 60889]]
calculations, there are scenarios where individuals assigned a high
wage level in an occupation that the commenter considered less
important to national interests would receive more entries in the H-1B
lottery than an individual assigned a lower wage level in a more
important occupation. The commenter provided examples of how a
landscape architect and acupuncturist with higher wage level salaries
would have higher chances of selection than an AI researcher, surgeon,
or startup executive.
Response: This rule does not, and is not intended to, treat any
industries better or worse than others. Nor does this rule seek to
prioritize ``roles less important to U.S. interests.'' DHS acknowledges
that, as stated in the NPRM, this rule will likely impact the number of
selected registrations for certain SOC codes, with some occupations
possibly seeing a decrease in selected H-1B registrations while others
seeing an increase. 90 FR 45986, 46008-09 (Sept. 24, 2025). However,
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, while ensuring meaningful opportunities for
selection regardless of industry or profession. An employer could offer
a higher wage than required by the prevailing wage level to reflect the
value of the prospective employee; an employer that chooses not to do
so, or cannot do so, may still enter a registration that would
potentially be selected. DHS believes this rule will benefit the best
and brightest workers in all professions and industries.
14. Geographic and Regional Disparities
Comment: Some commenters said that the weighted selection process
fails to account for regional differences in wage levels, creating
geographic inequities and favoring employers in high-wage metropolitan
areas while disadvantaging those in regions with lower costs of living
and correspondingly lower prevailing wages. Some commenters remarked
that talent would concentrate in high-cost regions, such as Silicon
Valley and the Bay Area, noting that wages differ substantially by
location due to regional cost-of-living variation, not worker skill.
Conversely, other commenters claimed that the proposed weighted
selection process would benefit companies in lower-cost areas while
hurting startups and other tech companies in high-cost hubs like
Silicon Valley, with one commenter stating that pushing talent away
from such hubs would make these regions less globally competitive.
Some commenters wrote that the rule would exacerbate existing
regional economic imbalances by concentrating talent in a few major
metropolitan areas and leaving rural areas with talent shortages.
Multiple commenters said companies in rural areas providing competitive
wages for their location are disadvantaged against employers in high-
cost metropolitan areas that can offer higher wages. Some commenters
also remarked that the proposed rule would leave rural areas
underserved and exacerbate economic inequality. A commenter wrote that
the proposed rule would undermine the ``billions of dollars'' the
United States has invested into encouraging regional development in
smaller cities. Another commenter said that the proposed rule would
create severe economic disruptions in regions that have built their
economies around industries that depend on international talent by
restricting the flow of such talent.
Response: DHS does not believe that this rule will necessarily
disadvantage certain geographic regions as compared with others. As
with all other cap-subject H-1B registrations (or petitions), DHS will
weight registrations for these positions generally according to the
highest OEWS prevailing wage level that the proffered wage equals or
exceeds, which necessarily takes into account the area of intended
employment. In other words, under this rule, registrations
corresponding to the same wage level will be weighted the same
regardless of whether their proffered wages are different owing to
their areas of intended employment. This final rule neutralizes
geographic differences in salary amounts by taking into account the
area of intended employment when weighting registrations. DHS therefore
does not agree that this rule would disadvantage certain geographic
regions, exacerbate existing regional economic imbalances, or undermine
regional development. With respect to the commenter's concern about
regions with economies built around specific industries that depend on
international talent, DHS disagrees that this rule would restrict the
flow of such talent. Instead, 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.
15. Negative Impacts on Mixed Compensation Models
Comment: Commenters expressed concern that a wage-based selection
process does not consider all aspects of compensation. A commenter
pointed out that while the OEWS data takes into account a range of
other types of pay (such as commission, cost-of living allowance,
hazard pay, incentive pay, piece rate, production bonus, and tips,)
employers are only allowed to use the base wages when complying with
wage requirements in the H-1B program.
Commenters wrote that an employee's pay can go beyond base pay and
can include: bonuses, equity, benefits, commission, cost-of-living
allowance, deadheading pay, guaranteed pay, hazard pay, incentive pay,
longevity pay, over-the-road pay, piece rate, portal-to-portal pay,
production bonus, and tips, with some commenters noting that such
incentives may vary by industry. Other commenters expressed concern
that small businesses and startups, which often rely on equity
compensation, future profit participation, or stock options rather than
high salaries, would be particularly disadvantaged. Some commenters
said that if only base salary is considered, it would not provide a
standardized comparison and could distort the H-1B selection process.
Some commenters remarked that employers relying on equity-based pay
may appear to offer lower wages despite competitive packages and
cautioned that these employers could inflate base salaries without
improving total compensation, potentially distorting the system.
Similarly, a commenter remarked that the proposed rule would overlook
the challenge of adjudicating disputes about compensation packages that
include bonuses, equity, or other non-cash benefits. The commenter
stated that because the system privileges base salary alone, employers
will be incentivized to overstate base pay on paper while cutting back
on other components of total compensation. The commenter expressed
concern that this creates enforcement disputes that USCIS is ill-
equipped to resolve at scale.
Some commenters suggested that DHS could improve the system by
incorporating total compensation, including the cash value of stock and
bonuses. A commenter suggested that if wages are considered, it would
make sense to consider past Internal Revenue Service (IRS) transcripts
of candidates to get a more complete picture of compensation.
Response: DHS recognizes that companies may offer various forms of
pay and benefits provided as compensation for services, such as cash
bonuses, stock options, paid insurance, retirement and savings plans,
and profit-sharing plans. While cash bonuses may, in limited
circumstances, be counted towards the annual salary (see 20 CFR
[[Page 60890]]
655.731(c)(2)), other forms of benefits, such as stock options, profit
sharing plans, and flexible work schedules may not be readily
quantifiable or guaranteed, which means that they cannot reliably be
calculated into proffered wages. While this may affect some petitioners
and beneficiaries negatively, DHS does not believe there is a viable
alternative that could consider all of the various forms of
compensation that companies may offer that could be implemented in an
uncomplicated and predictable way. Additionally, DOL regulations define
payment of wages for purposes of satisfying the H-1B required wage. See
20 CFR 655.731(c)(2). This rule does not change how wages are defined
or measured. Regarding the suggestion to consider past IRS transcripts
of candidates, DHS notes that proffered wages at the time of
registration and petition filing generally relate to future employment,
so it is unclear what purpose transcripts or other IRS documentation of
prospective employees would serve.
16. General Concerns on Wage-Based Selection
Comment: Many commenters said that wage is not a proxy for
experience, skill, or education and that the rule erroneously assumes
those who earn more contribute more to the economy or society. Other
commenters stated the proposed rule would significantly reduce the
chances of obtaining an H-1B visa in entrepreneurial, academic, and
research spaces which would restrict access to international workers
with specialized skills in these areas. Other commenters said that the
new system would disadvantage top earners, as a highly paid individual
with a level I wage in a high-earning field would be ranked lower than
someone who earns far less as a level IV in a lower-earning field.
Commenters also stated that the proposed rule would favor only
experienced, high-paid workers and big firms, while shutting out early-
career professionals and the startups, healthcare institutions, and
research sectors that rely on them. One commenter said that by
conflating wage level with skill and innovation potential, DHS would
systematically disadvantage the early-career talent pipeline that
drives technological breakthroughs. Another commenter stated that the
proposed weighted selection process does not account for a level IV H-
1B employee who may be laid off and may need to accept a bridge job at
level II or III, putting their status in jeopardy.
Response: DHS disagrees with these comments and believes that
salary generally is a reasonable proxy for skill level.\44\ DHS
believes that an employer who offers a higher wage than required by the
prevailing wage level does so because that higher wage is a clear
reflection of the beneficiary's value to the employer, which reflects
the unique qualities the beneficiary possesses. DHS does not believe
this rule will favor certain high paying professions or companies,
because the rule takes into account wage level relative to the SOC code
when weighting registrations (or petitions). Additionally, DHS
recognizes that this rule will decrease the chance of H-1B cap
selection for jobs with a proffered wage that corresponds to a level I
wage, but it does not shut out early-career professionals. As stated in
the NPRM and throughout this final rule, DHS recognizes the value in
maintaining the opportunity for employers to secure H-1B workers at all
wage levels. DHS also disagrees with the concern that wage levels are
inadequate to compare workers across occupations as this rule is
designed to generally favor the allocation of H-1B visas to higher-
skilled and higher-paid aliens, while ensuring meaningful opportunities
for selection regardless of industry or profession.
---------------------------------------------------------------------------
\44\ See DOL, Educational Level and Pay, <a href="https://www.dol.gov/general/topic/wages/educational">https://www.dol.gov/general/topic/wages/educational</a> (last visited Nov. 24, 2025)
(``Generally speaking, jobs that require high levels of education
and skill pay higher wages than jobs that require few skills and
little education.''). See also ``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), <a href="https://www.epi.org/publication/h-1b-visas-and-prevailing-wage-levels">https://www.epi.org/publication/h-1b-visas-and-prevailing-wage-levels</a>. (``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.'').
---------------------------------------------------------------------------
DHS also does not believe that this rule will disadvantage
particular industries or employers based on geography, size, or other
factors. Wage levels already account for these factors by taking into
account the area of intended employment and SOC code. While the
weighted selection process may not account for every scenario, such as
a laid-off worker taking a temporary lower paying job, DHS believes
that this is a rare scenario and is unable to provide for every
possible scenario when implementing a weighting process that is
uncomplicated and predictable for prospective petitioners. Further, DHS
believes that the advantages of the new selection process and the
benefits it will bring to the economy overall outweigh any possible
disadvantages that may occur in rare cases.
17. Concerns With the OEWS Program
Comment: Several commenters expressed concern with using the OEWS
program. For instance, a commenter noted that the rule relied on faulty
wage level assumptions in using the OEWS data and said that the OEWS
wage survey, on which H-1B wage levels are based, was never intended to
measure skill or productivity. The commenter explained that its purpose
is to represent mean and percentile wage distributions within
occupational codes, and it makes no adjustment for the employer's
industry, business model, or regional cost factors. The commenter said
that the proposed rule's assumption that positions commanding a wage
that corresponds to a level IV wage represent the ``most skilled''
workers ignores the structural wage differentials that exist across
industries. The commenter notes that DOL's OEWS data aggregate wages
across all employers within an occupation, without adjusting for the
profit structure, funding model, or public versus private character of
the employer, and that the wage levels are based primarily on
statistical percentiles of pay, not individualized measures of
experience. As a result, the proposed weighted selection process risks
granting preferential treatment to junior employees in lucrative
markets over experienced professionals in essential but lower-paying
fields, such as education, public health, and infrastructure
engineering. Similarly, several commenters stated that wage levels are
inadequate to compare workers across occupations.
A commenter also expressed concern with wage inflation, noting that
it reflects market conditions rather than skill increases. The
commenter noted that some areas, such as technology, finance, and law
have seen wage inflation in recent years, where compensation has
escalated due to market competition rather than measurable increases in
skill and the proposed weighted selection process would reward
industries that can inflate salaries fastest, not those that develop or
employ the most capable workers. Other commenters stated that the
selection process artificially inflates the chances of roles requiring
less training, experience, or responsibility.
Response: DHS appreciates these concerns but maintains that salary
generally is a reasonable proxy for skill
[[Page 60891]]
level.\45\ While DHS is aware that some structural wage differentials
may exist across industries, DHS is not aware of an efficient and
uncomplicated way to incorporate such differentials into the OEWS wage
system or to otherwise account for these differentials when weighting
and selecting registrations or petitions. Similarly, DHS is not aware
of an alternate program (other than OEWS) that would consider such
unique factors as individualized experience and wage inflation. While
no data set is perfect, the OEWS data represents the best available
resource for this purpose. DHS favors using the OEWS wage level system
because it is already used in the H-1B program, widely recognized,
publicly available, and updated annually by DOL. DHS intentionally
chose a selection methodology that used information and resources
already familiar to most petitioners and stakeholders. Utilizing OEWS
wage levels allows USCIS to leverage employers' existing knowledge of
the wage levels in order to implement the weighted selection process.
Employers are already required to complete LCAs and access OEWS wage
information or alternative wage sources. This rule simply requires that
the employer will look at the wage they are offering the alien and,
when OEWS wage level is available, select the wage level that
corresponds to that offered wage for the offered position's SOC codes
and metropolitan statistical area (MSA). Although OEWS does not collect
information on skill or experience levels, DHS believes it is
reasonable to use features of the OEWS wage distribution as a proxy for
those variables. If OEWS wage level is unavailable, the employer
determines the wage level using the DOL guidance that the employer
would otherwise follow when determining the relevant wage level to
select on the LCA.
---------------------------------------------------------------------------
\45\ See DOL, Educational Level and Pay, <a href="https://www.dol.gov/general/topic/wages/educational">https://www.dol.gov/general/topic/wages/educational</a> (last visited Nov. 24, 2025)
(``Generally speaking, jobs that require high levels of education
and skill pay higher wages than jobs that require few skills and
little education.''). See also ``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), <a href="https://www.epi.org/publication/h-1b-visas-and-prevailing-wage-levels">https://www.epi.org/publication/h-1b-visas-and-prevailing-wage-levels</a>. (``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: A commenter expressed concern that the rule would create
confusion between the wage level offered for USCIS purposes and the
wage level required under DOL rules. The commenter noted that if a
petitioner decides to pay a beneficiary a higher wage level than what
is required under DOL rules for a better chance at selection (such as a
level IV wage), then the prevailing wage level indicated in its
registration submitted to USCIS will not match the prevailing wage
level indicated on its LCA submitted with the petition (which may have
been a level I wage). The commenter stated that at minimum, USCIS
should refine 8 CFR 214.2(h)(8)(iii)(D)(1) to make clear that the
actual LCA submitted with an H-1B petition should still calculate the
prevailing wage based upon existing DOL rules, and the offered wage
listed in the registration is to be used solely for determining the
weighting of the lottery entry.
Response: As clearly stated in the NPRM, a registrant is required
to select the box for the highest OEWS wage level (``wage level IV,''
``wage level III,'' ``wage level II,'' or ``wage level I'') that the
beneficiary's proffered wage generally equals or exceeds for the
relevant SOC code in the area(s) of intended employment. 90 FR 45986,
45992 (Sept. 24, 2025). DHS does not agree that this is confusing.
Conversely, DHS believes it would be confusing to add language in 8 CFR
214.2(h)(8)(iii)(D)(1) that discusses how to calculate the prevailing
wage under DOL rules since this provision is about filing procedures
with USCIS.
18. Other Opposition
Comment: A commenter expressed concern that the rule allows the
government to manipulate market-based wages through the use of
immigration policy, saying this rule establishes ``dangerous precedents
for government
[…truncated; see source link]Indexed from Federal Register on December 29, 2025.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.