DPE Response to U.S. Department of Homeland Security's Proposed H-1B Weighted Selection Process
October 24, 2025
The Honorable Kristi Noem
Secretary, U.S. Department of Homeland Security
2707 Martin Luther King Jr. Ave SE
Washington, DC 20528-0525
Re: Weighted Selection Process for Registrants and Petitioners Seeking To File Cap-Subject H–1B Petitions (U.S. Citizenship and Immigration Services) (DHS Docket No. USCIS-2025-0040)
Dear Secretary Noem,
On behalf of the 24 national unions in the Department for Professional Employees, AFL-CIO (DPE), I appreciate the opportunity to respond to the U.S. Department of Homeland Security’s (DHS) Notice of Proposed Rulemaking (NPRM) regarding “Weighted Selection Process for Registrants and Petitioners Seeking to File Cap-Subject H-1B Petitions” (RIN 1615-AD01).
The NPRM is directly relevant to DPE’s affiliate unions, which represent over four million professional, technical, and other highly skilled workers. Members of DPE’s unions include U.S. citizens, permanent residents, H-1B beneficiaries, and people who hope to be H-1B beneficiaries in the future. DPE’s response to the NPRM, as well its long-time advocacy for fundamental reforms to the H-1B visa program, is informed by the experiences of these union professionals.
DPE believes that the H-1B program plays an important role in the economy by attracting skilled talent, including members of our unions, to the United States. However, the program, which Congress intended to permit U.S. employers to hire people from abroad when they could not find qualified, available U.S. professionals, is now a tool for employers to lower labor costs. Employers can replace U.S. professionals with H-1B workers who are paid below-market wages in employment arrangements where the employer controls their ability to live and work in the United States. Today the vast majority of H-1B visas go to companies engaged in outsourcing and offshoring and most H-1B workers earn wages below the median, 50th percentile for their occupation and area.
A major reason for the low wages and reliance on the program by outsourcing firms is the visa allocation process administered by the Department of Homeland Security (DHS) through U.S. Citizenship and Immigration Services (USCIS). DPE agrees that DHS has the authority to determine how the government selects H-1B petitions subject to the annual numerical limit. The statute requires the agency to select petitions in the order in which they are received, which is practically impossible when USCIS receives more petitions than available visas. Currently, when this occurs, USCIS uses a random lottery process that was never formalized through the regulatory process.
DHS Should Pursue A More Effective Wage-Based Visa Allocation Process
DPE recommends that DHS use its regulatory authority to adopt a wage-based visa allocation process when demand for annual cap-subject visas outpaces supply. Establishing a wage-based allocation system will provide greater certainty to employers, while incentivizing them to pay more competitive wages. DPE also expects an increased number of international graduates from U.S. colleges and universities will be hired on H-1B visas since education attainment and time in the U.S. should command higher salaries.
A wage-based allocation system will also advantage direct-hire employers, including start-ups and small businesses, over the large outsourcers whose business model is built on gaming the random lottery by filing thousands of petitions in an effort to increase their chances of “winning” large shares of H-1B visas every year. In 2022, 13 of the top 30 H-1B employers were outsourcing firms; these companies received 21% of the cap-subject H-1B visas for new workers (17,534 visas). Year after year, these same companies pay their H-1B workers at the lowest possible wage levels, well below the local median wage for occupations.
DPE believes that a wage-based allocation process will more effectively improve the H-1B visa allocation process than the proposed weighted selection process. DHS’s own analysis suggests that employers wanting to pay H-1B workers the lowest allowable wages will still be able to do so under the proposed weighted selection process. Whereas, under a wage-based allocation system, petitions for Level 1 wage level jobs would likely not be selected. At the same time, DPE rejects the idea presented by some that employers cannot hire H-1B workers for early career jobs without being able to pay Level 1 jobs. Instead employers will need to raise wages to more accurately match actual labor market conditions, which has positive effects for U.S. professionals and people working on H-1B visas.
More Needed to Fully Reform H-1B and Other Temporary Work Visa Programs
DPE urges the Administration to go beyond the present NPRM to help improve the H-1B and other temporary work visa programs for professionals. Funding and staffing should be returned to labor agencies. H-1B prevailing wage rates should be updated so that employers cannot pay less than the local median wage for an occupation. Outsourced work arrangements where H-1B workers are assigned to third party job sites should be prohibited. Employers who violate labor and employment laws should be barred from the H-1B and other temporary work visa programs. Protections, including work authorization, should be provided to noncitizen workers who blow the whistle on employers’ violations of labor and employment law. Foreign labor recruiters should be regulated and prohibited from charging fees to workers.
Administrative actions, including improving the visa allocation process and implementing DPE’s other recommendations, are important steps to fixing the broken H-1B visa program, but Congressional action is necessary to achieve lasting reforms. DPE therefore urges the Administration to support the H-1B and L-1 Visa Reform Act, bipartisan legislation that would go a long way toward reforming both visa programs by lifting wages, promoting worker empowerment, and ensuring that employees can exercise their workplace rights free of retaliation or coercion. In addition, Congress should allow H-1B and L-1 nonimmigrants to self-petition for permanent status and provide them the freedom to change jobs while waiting for available immigrant visas.
DPE also strongly urges support for the Keep STEM Talent Act, bipartisan legislation that enables talented graduates from U.S. colleges and universities to continue contributing to the American economy while ensuring that they can earn a fair return on their work. Under this legislation, international graduates who earn advanced STEM degrees from American universities are exempt from the annual green card caps so long as their employers receive approved labor certifications and pay them above the local median wage level for their specific occupation. The Keep STEM Talent Act offers in-demand graduates a high-road alternative to the H-1B and other precarious, temporary work visas, while enhancing America’s global leadership.
Conclusion
The experience of union professionals demonstrates why the H-1B program must be reformed. DPE agrees that DHS has the authority to regulate the visa allocation process. However, instead of the proposed weighted selection process, DPE recommends DHS implement a more effective wage-based visa allocation process. Allocating visas by wage level will provide greater certainty, encourage competitive wages, and reduce outsourcing and offshoring. At the same time, the Administration should do more to protect labor standards for all professionals.
If you have any questions, please contact DPE Assistant to the President/Legislative Director, Michael Wasser at mwasser@dpeaflcio.org.
Sincerely,
Jennifer Dorning, President