On October 28, 2020, DHS announced a notice of proposed rulemaking to amend the regulations governing the process by which the US Citizenship and Immigration Services (USCIS) selects H-1B registrations for filing of H-1B cap-subject petitions. 


Under the proposed rule, DHS would no longer conduct a random selection process for H-1B visas, but, rather, would rank and distribute visa slots based on the highest salaries paid to the beneficiaries by employers. 


If finalized as proposed, USCIS would first select registrations in which Level 4 wages are to be paid, and then Level 3, Level 2, and Level 1, provided there are remaining slots available.   


However, given the number of registrations projected to be submitted, it appears that in order to have a chance at selection, an employer would be forced to pay a Level 4 or Level 3 wage to foreign nationals, which is a considerable cost increase for employers.


If the new rule becomes final and allowed to stand, it would end the random selection process by which H-1Bs had been chosen in the past, and result in H-1B slots to be awarded to petitions filed at the highest wage levels.