Since USCIS implemented the wage-based selection system in March 2026, the H-1B cap lottery has no longer operated as a purely random draw. Instead, registrations are ranked and selected based on the offered wage level relative to the Occupational Employment and Wage Statistics (OEWS) prevailing wage for the relevant occupation and geographic area. Higher wage levels receive priority in selection before lower wage levels are considered.
Wage Level IV (the highest) is selected first. Level III is selected second. Level II is selected third. Level I (entry-level) is selected last, and only if the annual cap of 65,000 regular slots plus 20,000 U.S. master’s cap slots has not yet been filled.
The Case for the Weighted Wage System
Proponents of the system, including USCIS and many labor economists, offer several arguments in its favor.
It prioritizes higher-skilled workers. In theory, higher wages correlate with greater specialization, experience, and economic contribution. Selecting Level IV and III workers first means the cap is more likely to be filled with senior engineers, specialized scientists, and experienced managers rather than entry-level graduates.
It reduces lottery gaming and fraud. The old random lottery created incentives for staffing companies and body shops to flood the system with speculative registrations, sometimes for workers who had no genuine job offer or whose offer was designed purely to secure a registration slot. The wage-tiered system makes it significantly harder and more expensive to game through volume because higher wages cost real money.
It aligns with broader immigration policy goals. The stated policy intent of the H-1B program is to admit workers who cannot easily be found in the domestic labor market. Highly compensated specialists are a closer fit to that intent than entry-level workers whose skills heavily overlap with the available U.S. workforce.
It creates a more predictable outcome for premium employers. Large technology companies and financial institutions that routinely pay Level III and IV wages enjoy substantially higher selection rates, giving them greater workforce planning certainty.
The Case Against the Weighted Wage System
The system has drawn sharp criticism from employers, educators, and immigration practitioners alike, and the concerns are legitimate.
It systematically excludes early-career talent. The vast majority of recent graduates from U.S. universities — including master’s and PhD holders — command Level I or Level II wages simply because of their limited work history, not their potential or skill level. A brilliant computer science graduate from MIT or a newly minted data scientist typically starts at Level I regardless of talent. The system effectively tells U.S. universities and employers: train and recruit the best global talent you want, but do not expect to retain them through the H-1B.
It disadvantages smaller employers and nonprofits. A regional hospital, a mid-size tech startup, or a university research lab simply cannot compete on wages with Google, Amazon, or Goldman Sachs. The weighted lottery effectively concentrates H-1B access among a narrow band of large, cash-rich employers, undermining the program’s original design as a broadly accessible tool for employers of all sizes.
It distorts wage data in harmful ways. Employers under pressure to reach a higher wage level may reclassify a position upward — paying a Level III wage for what is genuinely a Level II role — creating wage inflation for some workers while potentially disadvantaging others in the same occupation who are benchmarked against inflated prevailing wage data in subsequent years.
It does not actually measure skill, only compensation. Wage levels are a proxy for skill, not a direct measure of it. A pianist, a rural physician, a marine biologist, or a Nepali-speaking social worker may be extraordinarily specialized with no domestic equivalent yet still command a modest wage because of the nature of the field. The system inadvertently favors high-paying industries over genuinely scarce skills.
It has not eliminated fraud — it has shifted it. Rather than volume-based lottery fraud, the wage system has created incentives for wage inflation fraud, where employers fraudulently classify positions at a higher wage level than the actual job duties warrant. USCIS and the Department of Labor (DOL) are now seeing more cases in which the LCA wage level does not match the actual job description submitted in the I-129 petition, creating serious legal exposure.
Legitimate Strategies to Improve H-1B Lottery Selection Odds
The most important principle here is this: every strategy must be grounded in genuine business reality. The wage level declared on the Labor Condition Application (LCA) must accurately reflect the actual duties, complexity, and supervision level of the real position. What follows are lawful, ethical strategies.
1. Conduct a Genuine Job Duties Analysis: Before accepting a wage level as fixed, work with your attorney to carefully analyze whether the actual duties of the position — not a generic job description — genuinely support a higher wage level classification. USCIS and the DOL both use the four-level framework from the OEWS guidelines, and the distinction between Level II and Level III is often a legitimate judgment call involving factors such as degree of supervision, complexity of tasks, use of independent judgment, and scope of responsibility. If the duties honestly support Level III, classify at Level III. Do not accept a default Level I or II classification without scrutiny.
2. Restructure the Role Where Genuinely Warranted: If a company is hiring a software engineer but the actual responsibilities include mentoring junior staff, leading technical architecture decisions, or working without direct supervision on complex systems, the role may genuinely qualify as a Level III or IV position. Employers should consider whether the job as actually designed and performed — not just as titled — supports a higher classification. This is not manipulation; it is an accurate description.
3. Use the U.S. Master’s Cap Strategically: If the beneficiary holds a U.S. master’s degree or higher, they are eligible for the 20,000 additional cap slots reserved for U.S. advanced degree holders. Registrations are first run through the master’s cap pool, and those not selected are then entered into the general cap pool, effectively giving U.S. master’s degree holders two chances at selection. This advantage is significant and should never be overlooked when the beneficiary qualifies.
4. Explore Cap-Exempt Employers as a Bridge: Cap-exempt employers — primarily institutions of higher education, nonprofit research organizations, and government research entities — can sponsor H-1B workers without going through the lottery at all. If a beneficiary can secure a legitimate part-time or full-time position with a cap-exempt institution, they become H-1B eligible outside the lottery. A subsequent cap-subject employer can then file a concurrent H-1B, or the beneficiary can change employers once the cap-exempt H-1B is approved. This pathway is entirely lawful and is increasingly used by universities, hospitals, and research institutions.
5. Consider Alternative Visa Categories Now, Not Later: For workers with extraordinary ability, consider O-1A petitions, which are cap-exempt and can be filed year-round. For intracompany transferees, L-1A or L-1B petitions bypass the cap entirely. For nationals of Canada and Mexico, TN status offers another cap-free option. For treaty-country nationals with a qualifying investment, the E-2 visa is available. The more time spent exploring these alternatives, the less the H-1B lottery becomes a single point of failure.
6. Build the Beneficiary’s Evidence Profile for Premium Classifications: If the same beneficiary will be registered in future lotteries, begin now to build the record that supports a higher wage level — advanced certifications, publications, speaking engagements, patents, promotions, salary reviews, and expanded responsibilities. A worker who enters the lottery in FY2027 or FY2028 as a Level III instead of Level I because of genuine professional development has dramatically improved odds without any manipulation of the system.
7. File Early and Accurately: While the registration window itself does not reward early submission within the window, accuracy matters enormously. Errors in registration — mismatched employer details, incorrect SOC codes, or wage level inconsistencies between the registration and the eventual LCA/I-129 — can lead to denial or heightened USCIS scrutiny. A clean, accurate registration that remains consistent from registration through petition filing is both good practice and effective risk mitigation.
A Word on What Not to Do
USCIS, the DOL, and the Department of Justice are actively investigating wage-level inflation fraud, where employers classify a genuinely entry-level position at Level III or IV solely to improve lottery odds. If the wage level on the LCA does not match the actual duties in the I-129 petition, and USCIS issues a Request for Evidence (RFE) or a DOL investigator conducts a compliance audit, the exposure includes petition denial, debarment of the employer from future filings, back-wage liability, and, in egregious cases, criminal referral. The short-term gain of a lottery selection is not worth that risk.
The strategies above work precisely because they are grounded in reality. The goal is not to manufacture a higher wage level — it is to ensure the wage level accurately reflects the actual position so that selection odds are as high as the genuine job duties legitimately allow.
This is intended for informational purposes only and does not constitute legal advice. Always consult an attorney for personalized advice.
Keshab Raj Seadie, Esq.
View More PostsKeshab Raj Seadie is an immigration lawyer located in New York City and the founder of the Law Offices of Keshab Raj Seadie, PC. The firm has been serving clients for over twenty years, offering counsel and representation in a wide range of immigration law areas.
