[Blogger’s note: The H-1B Notice of Proposed Rulemaking (NPRM)(” Weighted Selection Process for Registrants and Petitioners Seeking To File Cap-Subject H-1B Petitions”) closed for comments October 27, 2025. More than 9,000 have been submitted with additional comments possible on the lottery registration form until November 24, 2025. On varying and at times overlapping or contrary grounds, several organization submitted comments opposing the NPRM. You can read them here: The American Immigration Lawyers Association/American Immigration Council; the Compete America Coalition; the Society for Human Resources Management; the National Foundation for American Policy; the Citizens Rulemaking Alliance; and ITServe Alliance all opposed the NPRM. Writing as a private citizen, taxpayer and immigration lawyer, I did as well. My comment follows.]
Comment in Opposition to DHS/USCIS Proposed Rule
DHS Docket No. USCIS‑2025‑0040
Weighted Selection Process for Registrants and Petitioners Seeking to File Cap‑Subject H‑1B Petitions
To the U.S. Department of Homeland Security and U.S. Citizenship and Immigration Services:
By way of introduction, I am an American citizen and taxpayer who is licensed to practice law in the states of California, Michigan, and New York, and in the District of Columbia. I have practiced U.S. immigration and nationality law exclusively for more than four decades and have published several articles on the H-1B visa category since its incorporation into the Immigration and Nationality Act (INA) with the enactment of the Immigration Act of 1990.
I write this comment solely on my own behalf and submit it in respectful opposition to the proposed rule published on September 24, 2025, that would replace the longstanding random H‑1B lottery with a wage‑weighted selection system.
While the stated goal of promoting highly skilled and highly paid workers is commendable, this proposal represents an overly narrow and economically disruptive departure from both the INA’s statutory design and the real needs of the U.S. economy.
The use of Department of Labor wage levels as a proxy for “merit” misunderstands the structure of the modern labor market. Wage levels reflect experience, tenure or managerial responsibilities more than skill or innovation potential. As such, the rule would systematically disadvantage start‑ups, small businesses, nonprofit research institutions, schools, health care providers and emerging sectors that rely on hiring recent graduates and early‑career professionals—workers who are often at wage levels I or II but contribute significantly to the needs of American consumers and to U.S. innovation, particularly in engineering, biotechnology, and software development.
The proposed system’s statistical weighting—granting up to four entries for Level IV positions while significantly reducing the current selection odds for Level I—would create an uneven and exclusionary process that favors H-1B petitioning employers capable of sustaining higher pay scales. These outcomes undermine Congress’s policy of balancing competitiveness with fairness through an equal‑chance lottery designed to allocate limited visa numbers objectively.
The adverse economic effects of the proposed rule are further magnified by President Trump’s September 19, 2025, Proclamation, Restriction on Entry of Certain Nonimmigrant Workers, which imposes a $100,000 supplemental fee on new H‑1B petitions filed on or after September 21, 2025. When combined with the NPRM’s wage‑weighted selection framework, this additional fee effectively creates a dual barrier—drastically increasing the financial burden on employers while simultaneously reducing the probability of selection for those offering wages below Level III. Together, the two measures would render participation in the H‑1B program economically unfeasible for many small and mid‑sized U.S. firms, universities, and research institutions, thereby compounding the damage to labor market flexibility and American competitiveness.
Furthermore, the proposed rule risks introducing inequitable geographic and sectoral consequences because prevailing wage data are inconsistent across metropolitan areas and occupational codes. Firms in lower‑cost regions would face artificially lower selection odds even when offering competitive wages relative to local markets.
In addition, the NPRM’s reliance on Liu v. Mayorkas, 588 F. Supp. 3d 43 (D.D.C. 2022), is legally misplaced and cannot sustain the proposed rule’s radical restructuring of the H‑1B cap allocation process. Liu addressed a narrow challenge to USCIS’s implementation of its online registration system and upheld the agency’s discretion to try and prevent multiple filings for the same beneficiary. It did not authorize DHS or USCIS to abandon Congress’s plain directive in section 214(g)(3) of the INA, which mandates that visas “shall be issued … in the order in which petitions are filed.”
By using Liu to justify a wage‑based weighting of the lottery, the NPRM stretches that precedent beyond recognition. The district court in Liu merely endorsed USCIS’s administrative discretion to manage simultaneous filings during a single registration period; it did not condone a substantive prioritization scheme creating unequal selection probabilities among statutorily identical petitions. Congress deliberately preserved equality of treatment under the H‑1B cap, and neither the INA nor Liu provides a lawful basis for DHS to replace the congressionally mandated order‑of‑filing principle with an outcome that rewards employers offering higher wages.
Nothing in Liu indicates judicial acceptance of a policy that converts an equal‑chance lottery into a stratified, wage‑driven allocation system. To the contrary, the decision cautioned that agency discretion must remain consistent with statutory language and legislative purpose. The NPRM’s approach would invert that principle, effectively rewriting section 214(g)(3) under the guise of regulatory modernization.
Accordingly, this proposal exceeds the boundaries articulated in Liu and the INA, rendering the agency’s reliance on that case unsound. USCIS should withdraw the rule and preserve adherence to the statutory lottery process Congress enacted to ensure fairness, transparency, and equal opportunity in the allocation of H‑1B visas.
The NPRM is also unjustified in its citation to 6 U.S.C. § 111(b)(1)(E) of the Homeland Security Act as one of its legal bases, asserting that the Secretary of Homeland Security is charged with ensuring that “the overall economic security of the United States is not diminished by efforts, activities, and programs aimed at securing the homeland.” However, this provision was intended as a constraint on DHS’s regulatory power—not an expansion of it. It obligates the Department to avoid initiatives that would weaken economic stability or burden lawful sectors of American commerce.
The proposed H‑1B weighted selection rule directly conflicts with this statutory limitation. By skewing the H‑1B allocation process toward employers able to pay higher wages and the Proclamation’s $100,000 fee and away from small or mid‑sized employers that cannot match higher prevailing wage levels, the rule would exacerbate market concentration, suppress innovation from start‑ups, and disadvantage key regional industries and sectors. These foreseeable outcomes would diminish, rather than safeguard, the nation’s “overall economic security” as articulated in 6 U.S.C. § 111(b)(1)(E).
In invoking this statute to justify the rule, DHS reverses its plain purpose. The Department’s regulatory actions must enhance national economic resilience, not create new structural barriers that disrupt labor mobility and entrepreneurship. A rule that constrains U.S. employers’ ability to access specialized talent undermines the statutory mission Congress assigned to DHS. The agency should therefore withdraw this proposal as inconsistent with its governing mandate and the intent of 6 U.S.C. § 111(b)(1)(E).
Furthermore, the NPRM repeatedly reclassifies certain registrations or petitions in an arbitrary fashion to the lowest available wage level—Wage Level I—even where higher wage levels may reasonably apply. This internal downgrading occurs in three distinct parts of the proposed framework, each of which undermines the stated policy objective of rewarding higher wages and skills.
- Multiple Worksite Assignments – As described in the section on the required information for registration, when a single H‑1B beneficiary will work at several locations, the registrant must indicate the lowest equivalent wage level among all those worksites as the level to be used for selection. The proposal explicitly directs the employer to choose the lowest level that the proffered wage meets or exceeds, and USCIS would rely on that level when weighting the registration. This means that if one worksite qualifies for Level III wages and another only for Level I, the entire registration is treated as Level I for selection purposes, eliminating any benefit from the higher‑paid portion of the employment.
- Multiple Registrants for a Single Beneficiary – Under the section establishing the weighting process, USCIS would assign a wage level to a beneficiary based on “the lowest OEWS wage level among all registrations submitted on that beneficiary’s behalf.” Thus, even if one registrant offers a Level IV wage and another offers Level I, all registrations for that beneficiary are automatically weighted as Level I. The NPRM proposes this as an anti‑gaming measure, but its effect is to erase legitimate higher‑wage offers and give controlling significance to the lowest bid.
- Amended Petitions or Wage Adjustments – In the process‑integrity provisions, the NPRM states that USCIS may revoke a petition or deny a new filing if it appears that a petitioner sought to alter the wage level after selection to improve—or to maintain—selection odds. In this context, the rule again applies the lowest wage level associated with a given petition, worksite, or related entity. By doing so, it treats any subsequent change as evidence of inconsistency, even when ordinary business conditions explain the adjustment.
These built‑in downgrades produce a structural bias toward Level I treatment, contradicting DHS’s own assertion that the rule promotes higher wages. In practical effect, the rule converts mixed or variable wage scenarios—common among multi‑site and multi‑employer arrangements—into uniform Level I classifications. The repeated “lowest‑level” default ensures that USCIS’s weighting scheme would frequently disregard genuine Level II, III, or IV wage offers, reinforcing inequities and diluting the very incentives the Department claims to create.
For consistency with DHS’s stated policy rationale, the rule should be revised to prevent automatic downgrading when legitimate higher wage levels are part of the employment offer. Otherwise, the proposed system will systematically misclassify and undervalue complex positions while reducing selection chances for employers adhering to transparent, multi‑location business practices.
In addition, USCIS’s initial Regulatory Impact and Flexibility analysis greatly underestimated the deleterious impact of the proposed rule on small businesses and failed to propose workable mitigation strategies. The agency acknowledges that nearly one‑third of small H‑1B petitioners would experience significant harm, yet the rule does not propose exemptions, transitional relief, or offsetting mechanisms that 5 U.S.C. § 603 requires for small entities.
In light of these significant legal, economic, and equity concerns, I respectfully urge DHS and USCIS to withdraw this proposed rule in its current form. The existing beneficiary‑centric system already limits abuse while preserving fairness. Any future reform should arise from congressional deliberation or a comprehensive rulemaking that considers broader factors such as education, research value, and national interest—not merely wage level.
Respectfully submitted,
Angelo A. Paparelli