FY2027 H-1B Cap Lottery: Answering Employers' Frequently Asked Questions

Author: Taylor Lewellyn, Brightmine Legal Editor

In recent months, the Trump administration has implemented several major changes to overhaul the H-1B visa registration and selection process. Beginning in September 2025, employers seeking to hire certain nonimmigrant foreign nationals working in specialty occupations under the H-1B program are required to pay a hefty  $100,000 administrative fee. Also in effect for the FY2027 H-1B cap registration season, the United States Citizenship and Immigration Services (USCIS) will replace the existing random lottery for allocating cap-subject H-1B visas with a weighted selection process that increases the odds of selection for beneficiaries with higher wages.

In the face of these significant developments, employers have numerous questions about the new wage-weighted selection process, how the new method favors large employers and how HR and business leaders can prepare and remain compliant heading into the next fiscal year. Our Brightmine experts are pleased to guide you through the answers to a few of these frequently asked questions.

A: The revised method of H-1B quota allocation is based on the U.S. Department of Labor's (DOL's) Occupational Employment and Wage Statistics (OEWS) Wage Levels.  

Beneficiaries registered for the H-1B cap lottery will be entered into the selection pool using a weighted system as follows:

• Registrations assigned a Level IV wage will be entered into the pool four times.
• Registrations assigned a Level III wage will be entered into the pool three times.
• Registrations assigned a Level II wage will be entered into the pool two times.
• Registrations assigned a Level I wage will be entered into the pool one time.

USCIS may deny a petition if it determines that the petitioner attempted to unfairly increase the odds of selection by choosing an inappropriate wage level or by changing the wage offered to a lower wage level in the petition than that indicated in the lottery registration for that beneficiary.  However, USCIS recognizes that there are legitimate reasons that an intended work location might change between the time of registration and the time of filing the petition. Therefore USCIS may find that a change in the intended work location (corresponding to a lower wage level) is permissible, as long as it views the change as consistent with a bona fide job offer at the time of registration.

A: Under the new system, employers must now indicate specific details on each candidate's registration for the H-1B cap lottery, including:

• The appropriate Standard Occupational Classification (SOC) code,
• The highest OEWS wage level that the beneficiary's offered wage equals or exceeds for the relevant occupation in the area of intended employment, and
• The area of employment. 

The selection process will use wage data gathered at the registration stage, and employers must submit the additional data described above. For beneficiaries working in multiple locations, the registrant must select the lowest corresponding OEWS wage level the beneficiary's wage will equal or exceed. If the beneficiary's wage is expressed as a range, the registrant will be required to select the wage level that the lowest wage in the range will equal or exceed. If more than one employer submits a registration on behalf of a foreign national, the foreign national will be entered into the H-1B cap lottery according to the registration with the lowest prevailing wage level.  

Note that the OEWS wage level listed on a registration is not derived from the wage level used on the Labor Condition Application (LCA) that must be filed with the H-1B petition for selected registrations. Rather, the wage level listed on the cap registration is based on the offered wage, while the wage level used for the LCA is based primarily on the minimum education and experience requirements for the position and other factors specified in DOL prevailing wage guidance.

These changes are in addition to the new $100,000 fee required to be paid by beneficiaries applying for an initial H-1B visa outside the US or who undergo consular processing of their H-1B for activation.

A: Yes, the new process favors larger organizations that are hiring for high-salary positions because they are likely to have bigger budgets to allocate towards paying higher OEWS wage levels than smaller companies and start-ups. 

A higher-level position requiring more experience or education and corresponding to a higher wage level means more entries in the selection pool, and therefore an increased probability of selection.  

The new process may also limit smaller employers' access to some candidates, particularly those offered a wage classified as Level I, the lowest OEWS wage level. Further, the process may cause larger employers to increase the wages offered to H-1B cap beneficiaries to increase the odds of selection. This, in turn, could shrink the odds of selection for candidates with offered salaries at lower OEWS wage levels.

A: Before USCIS begins to accept registrations for the FY 2027 cap lottery, employers and their immigration counsel should:

• Audit each H-1B-eligible role for accurate SOC codes and defensible wage level assignments;
• Ensure the wage level, SOC code, job description and LCA details align across registration and petition stages to avoid requests for evidence (RFEs) or denials;
• Evaluate alternative visa options for critical talent; and
• Carefully consider how wage level policies will impact sponsored employees under this new rule.