On November 23, Landmark submitted a comment in support of the Department of Homeland Security’s (DHS) “Weighted Selection Process for Registrants and Petitioners Seeking to File Cap-Subject H-1B Petitions.” This Proposed Rule will strengthen protections for recently graduated American workers and prioritize merit in the allotment of H-1B visas. These visas are currently awarded via a computer-generated random lottery system. But because this system has no preference for the most qualified visa applicants, employers are perversely incentivized to hire cheaper foreign labor at the lower levels of their ranks over Americans. Should this Proposed Rule come into force, the United States would instead prioritize giving visas to the highest earning applicants. This scheme rightly assumes that visas to enter the United States should go to those who stand to contribute most to American businesses. Moreover, by reducing international competition for entry-level positions, the Rule would encourage U.S. employers to hire and train American workers first, in line the statutory purpose of the H-1B program.¹

For historical context, in 1990, Congress passed the Immigration Act of 1990, which amended the Immigration and Nationality Act (INA) and created the H-1B visa program as an extension of the H-1 visa. The program created a pathway for U.S. companies to hire foreign workers for “specialty occupations,” which was helpful at that point to fill the skills gap in American tech companies. Congress set statutory limits on the number of new H-1B visas allowed each year, providing 65,000 regular visas with an additional 20,000 set aside for individuals holding an advanced degree from a U.S. institution. Over the decades, Congress has amended these caps when political and economic calculations require it to do so.

Nevertheless, members of Congress on both sides of the aisle have long expressed concern about the program’s unintended impacts on the American workforce. Since 2007, Senators Chuck Grassley (R-IA) and Dick Durbin (D-IL) have worked to reform the H-1B system to prevent the displacement of American workers by cheaper foreign labor. For nineteen consecutive years, they have reintroduced the H-1B and L-1 Visa Reform Act in pursuit of this goal.² Senator Grassley emphasized that “[t]he H-1B program was never meant to replace qualified American workers. It was meant to complement them because of a shortage in workers in specialized fields.”³ Consistent with this sentiment, Senator Durbin submitted into the Congressional Record a conversation he had with a vice president in the foreign business conglomerate Tata Group, who acknowledged their use of H-1B visas to undercut American workers: “Our wage per employee is 20-25 percent lesser than the U.S. wage for a similar employee. . . . The issue is that of getting workers in the U.S. on wages far lower than the local wage.”⁴

Furthermore, the status quo on this issue harms more than just the current workers whose wages are directly undercut. If the United States continues to allow for Americans to be crowded out of the pipelines into STEM fields, it poses serious risks to the nation’s long-term knowledge base. Fewer Americans rising through the ranks of tech companies today is likely to result in a loss of experience and institutional knowledge similar to what occurred in the manufacturing sector in recent decades, where offshoring in the pursuit of short-term profits produced lasting domestic skill erosion.

Recent labor market data also undermines the idea that there is any shortage of entry-level tech talent in the United States that would require us to accept this outcome. College graduates in Computer Science and Computer Engineering faced unemployment rates of 6.1% and 7.5%, with underemployment rates of 16.5% and 17%, respectively.⁵ As of August 2025, five of the ten college majors with the highest unemployment rates—and two of the top three—are STEM-related majors.⁶ While recent U.S. graduates are struggling to find a return on their academic investment, American policymakers should be working to keep pathways to skill development and employment open wherever possible.

Although non-immigrant worker programs like the H-1B visa certainly require further reforms, this Proposed Rule is undoubtedly a step in the right direction. If implemented, this Rule would push employers to offer higher wages to foreign workers, reducing the incentive to use the program to circumvent prevailing industry pay standards. It would also give force to the H-1B program’s primary objective to attract workers in genuine “specialty occupations.” The United States is best served when the workers who come here stand to create jobs, rather than simply fill them. As such, any actions like this one taken by DHS to prioritize higher-skill applications are laudable.

Read the Proposed Rule here and Landmark’s comment here.