The FY 2027 H-1B lottery is approaching fast. But what will this year’s lottery look like? Will there even be a lottery?
To qualify for an H-1B, employers are required to submit an electronic registration on behalf of potential candidates. Each year there is a total of 85,000 visas available, 65,000 of which are reserved for the regular cap (bachelor’s degree), with an additional 20,000 visas available for the master’s cap (master’s degree or above).
The H-1B program is utilized by employers to bring foreign talent to the US to work in specialty occupations such as software development, engineering, healthcare, accounting etc. The H-1B program has been a frequent focus of the Trump administration and continues to face a level of criticism and regulatory scrutiny that exceeds most other visa categories.
Typically, the electronic registration process runs from March 1 through March 20, and then before the end of March, United States Citizenship and Immigration Services (USCIS) randomly selects applicants and notifies employers who has been selected. Selection rates are typically low, averaging around 30% in most years although in some years they have dropped as low as 15%.
For the lucky ones who are selected, Employers have the option to file an H-1B petition starting April 1 through June 30, 2026.
So, what has changed this year?
In December 2025 the Department of Homeland Security announced a final rule to revise the lottery from a purely random selection process to one weighted in favor of higher paid individuals. This final rule is effective February 27, 2026, and will therefore be in effect for the upcoming lottery, unless successfully challenged.
Under the weighted lottery system, candidates being paid a level four wage will receive four entries into the lottery; those paid a level three wage will receive three entries; level two wages will receive two entries; and, lastly, candidates paid a level one wage will receive only one entry.
The majority of candidates applying for an H-1B inside of the US tend to be F-1 students either on OPT, STEM OPT or Day 1 CPT. Because they are being offered entry-level positions, they are normally only paid a level one wage. Those being paid a level one wage will have the lowest chance of selection.
How can employers prepare for this year’s H-1B lottery?
Employers will need to ensure there is a genuine job opportunity for their employees and once they have established where the beneficiary will work, they will need to analyze job titles and SOC codes to determine the appropriate wages.
Employers will then need to determine what wage level they will pay the beneficiary and should be realistic about how much they can actually afford to pay. If an employer commits to a level four wage, they will be required to continue paying that wage level for the validity of the H-1B, which is typically three years.
What employers should not do.
Employers should not be tempted to select SOC codes with lower wage levels simply to pay a higher wage. The SOC code chosen must be appropriate for the job title and job duties. If an employer selects an SOC code that does not accurately relate to the position, they should expect to receive a request for further evidence (RFE) challenging the appropriateness of the code. These RFEs are often difficult to overcome.
Employers should also not commit to a higher wage level (such as level three or level four) solely to increase the chances of selection. If selected and the employer files a petition, the wage level must match what was listed in the registration. For example, if the registration lists a level four wage and the candidate is selected, but the employer then files a petition using a level one wage, the petition will be denied.
Employers should also not file under a level four wage and then pay the beneficiary less. Failure to pay the wage offered can result in a wage complaint to the Department of Labor (DOL), which in turn can lead to severe penalties and backpay.
Finally, employers should not file under a level four wage, submit the petition at that level, and then file an amendment six months later to reduce the wage. This will likely result in the amendment being denied and the original H-1B being revoked.
Increase in site visits likely.
Because of the potential for abuse, FDNS site visits will become more frequent, primarily to ensure that employers are paying the required wage.
Employers should also bear in mind that even if they can afford to pay a level four wage level, the position must be appropriate for level four. If it’s an entry level position, with no supervision responsibilities, level four may not be appropriate. During a site visit FDNS may check whether the job responsibilities and education/ experience requirements are appropriate for the wage level.
Is an H-1B lottery a certainty?
At the start of this article, I raised the question of whether there will even be an H-1B lottery this year. A lottery is only required when the number of H-1B registrations exceeds the number of available visas. As it currently stands, individuals applying from outside the United States would be subject to a $100,000 fee, and a significant portion of H-1B lottery registrants are located abroad. If that fee remains in place, many of those applicants may choose not to apply. Should that occur, the overall number of registrations would decrease, potentially eliminating the need for a lottery altogether. However, there is still a federal lawsuit challenging the $100k fee, so whether that will still be in place come March remains to be seen.
Conclusion
Much remains uncertain as we approach this year’s H-1B lottery. Will the $100,000 fee still be in place come March, and if so, how will it affect the number of electronic registrations submitted?
Will some employers decide not to register at all, knowing they cannot afford higher wage levels, or will others attempt to game the system by registering under a higher wage level and later trying to reduce that wage through an amendment?
While the new structure may incentivize employers to file under higher wage levels to improve selection odds, this approach requires careful consideration. Employers who believe they can register under a level four wage and later amend the petition to reduce the wage should be aware that this strategy will most likely result in a denial.
If you have questions please reach out to PSBP Law Partner Chris Prescott at cprescott@psbplaw.com.