New Trump Immigration Policy: Ending The H-1B Visa Lottery

Forbes

a day ago

Donald Trump delivers remarks during a meeting with German Chancellor Friedrich Merz in the Oval ... More Office on June 5, 2025. The Trump administration plans to publish a proposed rule to end or significantly change the annual H-1B visa lottery. (Photo by)
The Trump administration plans to publish a proposed rule to end or significantly change the annual H-1B visa lottery. Near the end of Donald Trump's first term, the administration proposed ending the current random selection process used each year when H-1B registrations exceed the annual limit of 65,000, plus a 20,000 exemption for individuals with an advanced degree from a U.S. university. In its place, U.S. Citizenship and Immigration Services would have awarded H-1B petitions based on salary from highest to lowest. Commenters warned the rule violated the statute and would disadvantage recent international students and other early-career professionals. The Office of Management and Budget is reviewing the rule and could clear it for publication within weeks.
The New Immigration Rule: Same As The Old Rule?
On January 8, 2021, the Department of Homeland Security published a final rule to modify its process for selecting H-1B petitions when registrations surpass the annual limit of 85,000. The Biden administration initially delayed and then ultimately chose not to implement the rule.
In the final rule in 2021, DHS described the new selection process: 'USCIS will rank and select the petitions received on the basis of the highest Occupational Employment Statistics wage level that the proffered wage equals or exceeds for the relevant Standard Occupational Classification code in the area of intended employment, beginning with OES wage level IV and proceeding in descending order with OES wage levels III, II, and I.'
Employers normally pay higher salaries to more senior employees, Level 3 (experienced) and Level 4 (fully competent) as indicated on the labor condition application. Recent international students and other individuals starting their careers are typically paid at Level 1 and Level 2. (Those are the minimum required salaries, and actual pay is often higher.)
According to DHS, under its proposed system, USCIS would not have selected anybody paid at Level 1 for the regular cap or advanced degree exemption. USCIS would have chosen only 20% of individuals at Level 2 for the 20,000 advanced degree exemption and 75% of the Level 2 registrants for the 65,000 regular cap, or about 50% combined, according to DHS data.
DHS based its analysis on far fewer registrations than the 343,981 eligible registrations USCIS received for FY 2026. That means with enough filings for Level 3 and Level 4 registrants, individuals paid at Level 2 would be shut out from obtaining H-1B petitions.
In 2021, a National Foundation for American Policy analysis found that an international student may be 54% more likely to get an H-1B petition under the current H-1B lottery (or registration) system than under the Trump administration's rule that would have ended the H-1B lottery. The analysis was based on examining actual cases of recent international students and H-1B petition filings obtained from an immigration law firm. Approximately 90% of the recent international student cases examined were paid at Level 1 or Level 2.
It remains unclear whether the new rule will be identical to the final rule published in January 2021. If so, the same arguments of supporters and opponents will apply. It is also possible the rule will differ substantively, but still produce the same result, i.e., disadvantage international students, early-career professionals and people employed in less highly compensated jobs.
The only clue so far is the titles for the two rules differ. DHS called the final rule published in January 2021 'Modification of Registration Requirement for Petitioners Seeking To File Cap-Subject H-1B Petitions.' However, the title of the new rule under review at OMB is 'Weighted Selection Process for Registrants and Petitioners Seeking To File Cap-Subject H-1B Petitions.'
'Weighting would suggest giving a higher probability of being selected for certain applicants, but everyone would still have some chance at being selected,' said economist Mark Regets, a senior fellow at NFAP. Weighting implies that USCIS would still conduct a lottery but, for example, if weighted solely by salary, an H-1B applicant with a proposed salary of $200,000 per year would have twice the chance of being selected as an applicant who earns $100,000 annually.
It is also possible USCIS is not using the term 'weighting' in a normal sense, and the new rule will be similar to the January 2021 final rule. Analysts would be surprised if the new H-1B rule spares international students, given Stephen Miller's well-known views as the chief architect of the Trump administration's immigration policies. Trump officials have stated an intention to end Optional Practical Training and STEM OPT and eliminate duration of status for international students. The administration attempted to deport thousands of international students for minor offenses and has banned the entry of students to attend Harvard.
International students are prevalent in the fields related to artificial intelligence. More than 70% of the full-time graduate students in electrical engineering and computer and information sciences at U.S. universities are international students. Among doctorate holders in the United States performing research and development as a major work activity, 83% in computer and information sciences and 80% in electrical and computer engineering are foreign-born, according to an NFAP analysis.
The Department of Homeland Security logo. (Photo by Samuel Corum/)
The Issues Raised By An Immigration Rule Changing H-1B Visa Lottery Selection
The new rule will not address the most significant immigration issue that many employers cite: the low number of H-1B petitions relative to the demand for highly skilled talent in an economy reliant on science and technology. An NFAP analysis found USCIS rejected almost two-thirds of H-1B applications for FY 2026 due to the low annual limit. The 85,000 annual H-1B limit equals about 0.05% of the U.S. labor force. H-1B visas are often the only practical way a high-skilled foreign national, including an international student, can work long term in the United States.
There were two primary criticisms of the final rule published in January 2021 that are likely relevant to the new rule. First, opponents argued that the rule was unlawful and that Congress would need to amend the statute to implement the changes proposed by DHS in its rule.
'Congress spoke directly and clearly by stating that H-1B petitions were subject to a numerical limit and would be considered not by order of skill or wage levels, by relative value to the U.S. economy, or by any other prioritizing criterion other than filing order,' according to a comment signed by the American Immigration Lawyers Association and other organizations. 'This is unambiguous in the statute where the INA establishes that consideration for an H-1B visa or status 'shall' be 'in the order in which petitions are filed.'' The Compete America Coalition, FWD.us, NAFSA: Association of International Educators, National Immigration Forum, TechNet, the U.S. Chamber of Commerce and others also signed the comment.
Commenters noted that in January 2019, when DHS established the H-1B registration system, it said in a reply to comments that it could not prioritize H-1B petitions based on salary or other criteria: 'DHS believes, however, that prioritization of selection on other bases such as those suggested by the commenters would require statutory changes. DHS believes that implementing a quota would be inconsistent with the existing statute, as Congress has implemented quotas in other contexts when it has intended to do so.'
Experts also warned the rule would likely put the United States at a disadvantage in recruiting talent. Bo Cooper, a partner at the Fragomen law firm and a former general counsel at U.S. Citizenship and Immigration Services, said in 2021 that the rule would establish as U.S. government policy a priority for recruiting individuals who are already senior professionals, even though nearly all of America's competitors for talent focus on attracting young talent, particularly recent university graduates.
The rule would have disfavored several significant occupations. NFAP identified 11 occupations, including physicians, internists, pediatricians, dentists and computer and information systems managers, where individuals paid Level 1 salaries would be unable to obtain an H-1B petition under the rule, even though their Level 1 salaries were higher than the median salary for Level 3 in all occupations.
The rule also would have made it much less likely that physicists, microbiologists and medical scientists (among others) could gain H-1B petitions: More than half of the labor condition applications for those occupations in FY 2019 were for Level 1, and close to 90% were paid at Level 1 or Level 2. Middle schools and high schools, which are not cap-exempt, would struggle to hire math and science teachers, as approximately 90% are paid at Level 1 or Level 2.
Focusing on salary alone will likely close the door to talented individuals in less highly compensated fields. Katalin Karikó, who earned the 2023 Nobel Prize in Physiology or Medicine for her groundbreaking research on messenger RNA, earned only $17,000 in 1985 (initially on a J-1 visa), which would be equivalent to less than $42,000 today.
After DHS publishes the immigration rule, the public will have an opportunity to submit comments. Unless a lawsuit succeeds in blocking the rule, the new H-1B selection process could be in place by March 2026, before the FY 2027 H-1B cap selection.