Published on January 8, 2021
The Department of Homeland Security (DHS) announced that it will publish a final rule drastically altering the H-1B cap lottery selection process. The final rule will impose a wage-based preference system to replace the previously random H-1B lottery selection process.
By publishing the final rule, DHS seeks to install a system that favors higher paid employees over those serving in lower paid positions based on the Department of Labor’s four-tiered wage level system. Because demand for H-1B visas typically exceeds the annual quota of available H-1B visas, the wage-based selection process will prioritize H-1B employees offered the highest salaries within their particular occupation and geographic location.
Under the final rule, U.S. Citizenship and Immigration Services (USCIS) will allocate H-1B visas based on the highest Occupational Employment Statistics (OES) prevailing wage level that the proffered wage equals or exceeds beginning with wage level four. USCIS will then proceed in descending order to OES wage levels three, two, and one, respectively. This new ranking system will apply to the regular H-1B cap allocation, which allows for 65,000 H-1B visas for individuals with at least a bachelor’s degree. USCIS will then complete the same lottery process for the 20,000 visas permitted under the advanced degree exemption.
DHS first announced the new wage-based preference system in a notice of proposed rulemaking on November 2, 2020. After accepting public comment, DHS has decided to issue the final rule as initially proposed, without modifying the text of the regulation, despite receiving a large volume of comments opposed to the rule.
It is anticipated that the Biden Administration will delay all rules not currently in effect by an additional 60 days. The new wage-based preference system may not impact the upcoming H-1B cap season for FY-2022, and would only go into effect prior to the H-1B cap season for FY-2023 (if the rule is not reversed).
Please contact the Immigration Attorneys at Ryan Swanson if you have any questions about the H-1B cap selection process.
Amy Royalty can be reached at [email protected].
Jen Chen can be reached at [email protected].
Cody Nunn can be reached at [email protected].
Marsha Mavunkel can be reached at [email protected].
Janet Cheetham can be reached at [email protected].
Joel Paget can be reached at [email protected].
This message has been released by the Immigration Group at Ryan, Swanson & Cleveland, PLLC to advise of recent developments in the law. Because each situation is different, this information is intended for general information purposes only and is not intended to provide legal advice on any specific facts and circumstances. Ryan, Swanson & Cleveland, PLLC is a full-service law firm located in Seattle, Washington.