H-1B visa versus O-1: Why new wage-based selection could face legal test

Immigration attorney says Congress never intended the H-1B visa to favour higher-paid workers, raising questions over the new system's legality

The new H-1B visa rules, one of the key immigration changes under the Donald Trump administration, are expected to be formally published in the Federal Register today. But they could run into legal trouble.

 

In a social media post, immigration attorney Emily Neumann said that the rules could face legal challenges as the H-1B visa programme, created by Congress, was never intended to be a wage-based system.

 

Neumann said the core dispute is whether the administration has the authority to favour higher-paid workers in a programme that, by law, does not rank applicants by salary.

 

H-1B visa was not created to favour higher wages, says attorney

 

 

“The statute passed by Congress that created the H-1B visa made no requirement that visas should go to high-wage individuals,” said Neumann. “There is already an O-1 visa category for people with extraordinary ability.”

 

She said the H-1B visa only requires a bachelor’s degree or equivalent, and was structured so that applications are considered in the order they are filed. Because registrations are submitted at the same time, a lottery was introduced to select applicants once the cap is reached.

 

“Now the administration is saying it has the authority to favour higher wages,” Neumann said. “That is the issue that is likely to be challenged.”

 

Neumann said the Trump administration had previously attempted to factor wages into H-1B selection, but courts struck down the move because proper notice was not given.

 

“This time they followed the notice-and-comment procedure,” she said. “But they finalised the rule without meaningfully engaging with public comments.”

 

According to Neumann, the proposal for wage-based selection was published on September 24 and remained open for public comment for one month. The final rules were released on December 23, leaving the administration around 60 days to review nearly 27,000 comments. 

 

What is the O-1 visa?

 

The O-1 visa is designed for individuals with extraordinary ability or achievement in fields such as science, education, business, arts, athletics, and the motion picture or television industry. It allows holders to live and work in the United States temporarily in their area of expertise.

 

To qualify, applicants must show sustained national or international recognition and prove they are among the top few in their field. Evidence may include major awards, published work, or original contributions that have had a wide impact.

 

The O-1 visa is divided into two categories.

 

• O-1A covers science, education, business and athletics.

• O-1B applies to the arts, motion picture and television industry.

 

Applicants must submit extensive documentation, including either a major internationally recognised award or evidence meeting at least three specific criteria, such as national or international prizes, membership in elite associations, or employment in a critical role for distinguished organisations.

 

The visa has no annual cap, allows work for more than one employer at the same time, and does not require a specific educational qualification. The initial stay can be up to three years, with extensions granted in one-year increments. 

 

Then how will the new H-1B visa system work?

 

The wage-based selection system will apply to all 85,000 H-1B visas issued each year, according to the US government. This includes 65,000 visas under the regular cap and 20,000 reserved for applicants with advanced degrees from US universities.

 

Because registrations far exceed the annual limit, a random lottery has been used to select candidates. Under the new system, every registration will still enter a single selection pool, but the number of times it enters the pool will depend on the wage level attached to the job.

 

• Wage level IV will enter the pool four times. These roles involve the highest level of experience and independent judgement, often linked to leadership or specialised expertise.

• Wage level III will enter the pool three times. These are senior roles with complex duties and substantial responsibility.

• Wage level II will enter the pool two times. These positions are for mid-level professionals with some experience and moderate supervision.

• Wage level I will enter the pool once. These are entry-level roles involving routine tasks, close supervision or training.

 

Neumann said wage levels do not represent actual salaries but are based on the Department of Labour’s prevailing wage system.

 

The rules are expected to take effect on February 27, 2026. The next H-1B selection process is scheduled for March.