DHS Proposes Weighted Selection for the Highest Wages in H-1B Cap

On September 24, 2025, DHS published in the Federal Register a proposed new rule that would give priority to H-1B Cap candidates whose employer promises to pay the highest of the Occupational Employment Statistics (OES) wage levels.

The OES assigns wages from Levels I through IV for a particular position in a Metropolitan Statistical Area (MSA). An employer then chooses the appropriate wage level based on the experience and complexity of the position and files a Labor Condition Application (LCA) listing the appropriate OES wage.

According to DHS’s proposed rule, H-1B Cap registration candidates offered higher salaries would have a significantly greater chance of being selected in the H-1B cap than those offered lower wages. Specifically, higher wage levels would receive more entries in the selection pool: Wage Level IV (fully competent) would get four entries, Wage Level III (experienced) three entries, Wage Level II (qualified) two entries, and Wage Level I (entry-level) one entry.

While DHS notes its intent is to incentivize employers to offer higher wages to H-1B workers, clients should remember that a position’s wage level is also determined by the DOL’s wage level guidance. Therefore, not all H-1B positions are eligible for Level III and Level IV wages.

The proposed rule is currently accepting comments from the public until October 24, 2025, to which DHS will then respond and may alter some elements of the rule.

MU has prepared a comment to the proposed rule expressing strong opposition to replacing the current random lottery system with a weighted lottery. The proposed rule would make it more difficult for hospitals and clinics—especially those in rural areas and nonprofits—to recruit and retain essential healthcare staff such as nurses and medical technologists. MU maintains that the H-1B program is critical to address workforce shortages in the U.S. healthcare system.