May The Odds Be in Your Favor: The New H-1B Lottery
The federal government has made considerable changes to H-1B Lottery by replacing the purely random selection model with a wage-weighted registration selection model. We are answering the most important questions that employers are asking themselves as a result of this significant shift.
What are the key dates for the lottery?
Registration window: March 4, 2026 – March 19, 2026
Selection notifications: March 31, 2026 (via online accounts)
Petition filing window: April 1, 2026 – June 30, 2026
Is the FY 2027 process still “a lottery?”
Yes, it remains a lottery, but it is no longer purely random. It, on the contrary, is weighted by wage level.
What caused this change?
The U.S. Department of Homeland Security issued a new final rule that goes into effect on February 27, 2026. This final rule will affect all of the registrations that employers file in March of 2026.
How does the new selection process work?
Under the new final rule, the selection process now is weighted in accordance with the Department of Labor’s four-tier prevailing wage structure (OEWS wage levels). Each unique beneficiary is entered into the selection pool as follows:
Wage Level IV: 4 entries
Wage Level III: 3 entries
Wage Level II: 2 entries
Wage Level I: 1 entry
Does a higher wage level guarantee selection?
No, weighting increases an employer’s odds, but it does not guarantee selection.
What happens if there are employees that work at multiple sites?
If an employer places an employer at multiple worksites, the system will use the worksite with the lowest OEWS wage level to determine weighting.
What happens if a beneficiary has multiple registrations submitted by different employers at different wage levels?
The beneficiary will be assigned a rating based on the lowest OEWS wage level among registrations for weighting purposes to reduce “gaming” the system.
What happens if you change your mind regarding the wage rate?
Employers also should ensure that there is consistency between the wage level that they use for the lottery and the Labor Condition Application and Petition that they file; otherwise, the federal government may deny or may revoke the petition.
Will anyone check that the wage rate is right?
Employers should expect that USCIS will inquire into the reason for which they selected a particular wage level and will request information and documentation that supports that determination to protect the integrity of the process. Employers, therefore, should work with counsel to select the right SOC Code and to conduct a wage level analysis based on the education, skills, experience, etc. that the position requires.
Should employers simply change their compensation just to increase their selection odds?
No, employers thoughtfully must determine the appropriate wage level for a position in light of the role’s location and requirements as well as other appropriate considerations, such as comparative data. The practice of “over-leveling” without empirical support can increase an employer’s risk of receiving a Request for Evidence, a Notice of Intent to Deny, or a Notice of Intent to Revoke.
Are there alternatives if your candidate is not selected?
Employers may be able to explore other options for candidates, such as Day 1 CPT, a STEM extension for OPT, O-1 Visas, and national interest waivers (depending on the candidates’ qualifications), if they are not successful in the lottery.
What should HR do now?
Identify candidates that are subject to the H-1B cap, determine job details (SOC/worksite/wage), and coordinate with counsel to determine the appropriate wage level.
Partner Giovanni Antonucci Di Cesare (giovanni.antonucci@pierferd.com) and Junior Partner Allison Bustin (allison.bustin@pierferd.com), Employment, Labor, and Benefits Department, are available to counsel on immigration and labor and employment issues.
This publication and/or any linked publications herein do not constitute legal, accounting, or other professional advice or opinions on specific facts or matters and, accordingly, the author(s) and PierFerd assume no liability whatsoever in connection with its use. Pursuant to applicable rules of professional conduct, this publication may constitute Attorney Advertising. © 2026 Pierson Ferdinand LLP.
