The U.S. Department of Homeland Security (DHS) recently proposed a rule to update itsH-1B visa application selection processin a move seen as an attempt to restore policy changes introduced during the first Trump administration.

Under the proposed rule, DHS would weight registrations for skilled worker visas based on the equivalent wage level that employers offer to beneficiaries. The rule establishes a four-tier wage system, and DHS would classify registrations accordingly. Job offers with higher wages would be placed at higher levels of the system and receive more selections in the agency's "lottery" than lower-wage applications.

DHS said that regardless of how many registrations a beneficiary submits or how many times they are entered into the lottery, each unique beneficiary would only be counted once in its allocation forecast. Additionally, DHS added that the new process would not change the prevailing wage levels for specific positions.

"Through the proposed regulatory changes, DHS aims to implement the cap in a way that incentivizes employers to offer higher wages, or to apply for positions that require higher skills and more highly skilled foreign workers, which should correspond to higher wage levels," the agency added. "The proposed process would favor allocating H-1B visas to more highly skilled and higher-paid foreign workers, while preserving employers' ability to obtain H-1B workers at all wage levels."

The proposal is a partial return to the policies of the first Trump administration. The Trump administration had issued a2021 final rulethat completely overhauled the H-1B selection process through a similar tiered system to prioritize applications with higher wage offers. However, unlike the proposal announced on Tuesday, the 2020 rule would have fully replaced DHS's lottery-based selection process.

DHS ultimately delayed the effective date of the 2021 rule andfully rescinded itafter former President Joe Biden took office. The Biden administration subsequentlyissued its own final rulein 2024, updating the H-1B registration selection process to select by unique beneficiary rather than individual registrations.

Tuesday's announcement comes after a separate major reform to the H-1B visa program was launched over the weekend, namely theimposition of a $100,000 fee on all new H-1B applications. According to CFO Dive, this change quickly triggered responses from employer groups, including the tech industry.

Jeanette Ryan, compliance director at international HR consulting firm ECA Group, said in an email to HR Dive, a sister publication of CFO Dive, that the fee requirement is expected to affect both international companies based in the U.S. and domestic companies.

Ryan said employers will need to budget for the increased costs and pay attention to future policy updates. She added that tech employers "may have to restructure their recruiting and training and talent development strategies, as they may find it difficult to find American workers with the required skill sets and qualifications to fill skilled positions."

In a September 20 blog post, attorneys at Jackson Lewis wrote that the $100,000 feeis likely to face legal challenges. "It is likely that someone will seek an injunction, and if granted, it would temporarily halt implementation of the announcement while litigation proceeds," the attorneys said.