The new H-1B visa rules, one of the major visa reforms by the Donald Trump administration, are expected to be formally published in the Federal Register tomorrow on December 29. But immigration attorney Emily Neumann said there are chances that the rules will be legally challenged as the H-1B visa program created by Congress was not meant for a wage-based selection. Neumann said this is not the first time that the Donald Trump administration tried to include wage as a component for visa but it got struck down by the court as they had not given a notice before the rules. This time, they followed the procedures to the T but finalized the rules without taking the comments in consideration. Neumann said the notice for the new wage-based selection was put out on September 24 and it was open for public comments for a month. The administration came out with the final rules on December 23 and had only 60 days to go through 27,000 comments.
Lottery out, wage-based H-1B selection in: What is the process?
- The new wage-based selection is applicable to all 85,000 annual H-1B applicants which includes 65,000 applications under the regular cap and 20,000 for those who have higher qualifications from US universities.
- Since the administration receives a huge number of applications far more than the cap, they have to do a random lottery every year.
- Now each H-1B will get a chance to be entered into the lottery based on their wage.
Wage Level IV (will be entered into the selection pool four times): These are jobs requiring the highest level of experience and independent judgment, often involving leadership, strategy, or recognized expertise.Wage Level III (will be entered into the selection pool three times): These are senior-level roles performing complex duties with significant autonomy and responsibility. Wage Level II (will be entered into the selection pool two times): These are qualified, mid-level professionals with some experience and moderate supervision.Wage Level I (will be entered into the selection pool one time): Entry-level positions involving routine tasks, close supervision, or training components.
- Each H-1B registration will still be placed into a single selection pool, but registrations tied to higher wage levels will be entered into that pool more times, increasing their likelihood of being selected. Also wage levels are not actual salaries but the Department of Labor’s prevailing wage system.
- The new rules are likely to take effect February 27, 2026. The next H-1B lottery is in March.
H-1B visa was not created to favor higher wages, says attorney
Neumann said that the biggest issue over the new H-1B rules is that the Statute passed by Congress, which created the H-1B visa program, made no requirements that visas be favored towards high-wage individuals. There is already an O-1 visa meant for highly exceptional individuals. H-1B does not require higher qualifications apart from bachelor’s, Neumann said.The program was designed in such a way that visas should be distributed in the order they are filed and the lottery is conducted because these applications are filed simultaneously. But now the administration is saying they have the authroity to favor higher wages, the attorney said.