Public comment: Weighted selection process for registrants and petitioners seeking to file cap-subject H-1B petitions

Paul Buono
Chief, Business and Foreign Workers Division
Office of Policy and Strategy
Department of Homeland Security
U.S. Citizenship and Immigration Services

RE: DHS Docket No. USCIS-2025-0040, Weighted Selection Process for Registrants and Petitioners Seeking To File Cap-Subject H-1B Petitions

Dear Mr. Buono, 

I write on behalf of the Niskanen Center to provide the following comment in response to the United States Citizenship and Immigration Services’ (“USCIS”) notice of proposed rulemaking, Weighted Selection Process for Registrants and Petitioners Seeking to File Cap-Subject H-1B Petitions, 8 CFR Part 214 (September 24, 2025) (“Proposed Rule”).

The Niskanen Center is a nonprofit public policy organization forging a new vision of American governance that draws on ideas from across the ideological spectrum. We advocate for a government that provides social insurance and essential public goods, fosters market competition and innovation, invests in state capacity, and does not impede productive enterprise. We are committed to the principles of liberal democracy and an open society that encourages engagement, cooperation, discussion, and learning.

We recognize immigration as an irreplaceable pillar of America’s economic, civic, and cultural strength. Our ability to attract the brightest minds and hardest workers worldwide has helped usher in unprecedented U.S. innovation and dynamism. Our economic health relies on newcomers who fill critical gaps in our workforce, pay billions of dollars in taxes every year, and employ millions of Americans in their businesses. 

Within the legal immigration system, the H-1B visa program plays a critical role in filling gaps in the domestic labor market and retaining talent trained at our educational institutions, while simultaneously investing in the upskilling of American workers. While we continue to encourage bipartisan legislation that can modernize the entirety of the American immigration system, we welcome this opportunity to comment on the proposed changes to the H-1B lottery selection process. 

I. Shortcomings of the proposed reform

As acknowledged in the rationale for the proposed rule, the H-1B program was designed to fill vacancies “requiring highly skilled or highly educated workers.” The requirements of the program reflect that intention and use educational attainment, or specifically the attainment of a bachelor’s degree or higher in a field of study directly related to the offered position, as a primary eligibility requirement and as a measure of the specialized knowledge required to perform a role successfully.

Notably, these criteria evaluate specialization based on educational credentials and specific skills acquired through training and education. The criteria do not emphasize experience as a primary measure of specialization. 

Although the proposed rule aims to “better serve the Congressional intent for the H-1B program,” the proposed changes deviate from the intentional focus on education and instead prioritize experience, erroneously equating wage level with measures of specialization. 

For example, consider a cardiologist and a civil engineer in Houston, Texas. Civil engineers typically need a bachelor’s degree and a state license to enter the occupation. Cardiologists, on the other hand, must have a bachelor’s degree and a medical degree, complete an internal medicine or pediatric residency, complete a cardiology fellowship, and obtain any required board certifications. 

Unsurprisingly, the salaries for these occupations reflect the differences in their educational requirements. The prevailing wage levels for a civil engineer in Houston, Texas, are $69,722, $89,981, $110,261, and $130,520 for wage levels I, II, III, and IV, respectively. The prevailing wage levels for a cardiologist in Houston are $101,026, $181,750, $262,496, and $343,221 for each wage level, respectively. 

The wage levels reflect the level of experience an individual has in his or her field, ranging from entry-level to fully competent, and measure compensation relative to others in the same occupation and location. That being said, even an entry-level cardiologist paid at wage level I has had more education and training in his field than most civil engineers. By wage level II, any cardiologist would be paid more than the typical wage level IV civil engineer. Wage levels, therefore, measure experience in a field, which is distinct from the education-driven specialization emphasized by the original Congressional design. 

Under the proposed changes, a civil engineer with many years of experience who is paid at a wage level IV would have a 300 percent higher chance of selection than a wage level I cardiologist who has completed significantly more education and training but comparatively has less experience. Therefore, the proposed changes contradict their own stated goal of favoring the “highest skilled or highest paid beneficiaries.” Instead, more experienced individuals would consistently receive priority, even over those with higher real wages, more education, and more training. 

II. Alternative recommendations

Despite its shortcomings, the proposed rule highlights a genuine problem. Demand for the H-1B program far exceeds capacity, and a randomized lottery is not the best or most beneficial way for the U.S. to allocate these visas. However, the proposed reform is shortsighted and contrary to the economic interests of the U.S. 

In addition to filling critical shortages, the H-1B program is also one of the best tools that the U.S. immigration system has to retain valuable foreign graduates. While many of these graduates are highly skilled and highly educated, they may lack experience comparatively and will likely be disadvantaged by the proposed rule. If we consistently fail to retain these graduates, we will be training our competition as other countries seize the opportunity to poach American-educated talent. If the trend continues and the U.S. loses its attractiveness as an international student destination, the U.S. economy could be at risk of losing nearly $44 billion in economic contributions and over 375,000 jobs. 

Instead of taking the narrow, and often inaccurate, view that wage levels reflect specialization and therefore economic value to the U.S., the administration should defer to Congress and push for a more robust revision of the H-1B selection process. Strategic industries, target occupations, or essential groups could be given priority. General selections could be driven by dynamic metrics of domestic needs, innovative potential, economic projections, an industry or occupation’s role in boosting American competitiveness, a position’s potential to support onshoring efforts, or the number of Americans employed or trained as a direct result of the H-1B worker’s employment. 

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The H-1B visa is critical to the American labor market and economy. The proposed rule accurately diagnoses the pitfalls of the current randomized allocation as employers struggle to know with certainty if they will be able to hire and retain even their most talented workers. However, the proposed rule’s design fails to support even its own intentions of returning to the original Congressional intent. Instead, the administration should encourage Congress to make more substantive changes to the H-1B process, ensuring that selected individuals reflect the actual needs of the U.S. and have the greatest potential to make positive contributions to the U.S. economy and workforce. 

Thank you for your consideration and the opportunity to provide feedback on the proposed rule.

Sincerely,
Cecilia Esterline
Senior Immigration Policy Analyst