News & Articles

DHS Proposes New Rule Which Would Drastically Change the H-1B Lottery Selection Process

Published on November 2, 2020

The Department of Homeland Security (DHS) announced a new rule which would drastically change the H-1B cap lottery selection process. This proposed rule would impose a wage-based preference system to replace the current random H-1B lottery selection process.

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 the demand typically exceeds the annual quota of H-1B visas available, the wage-based selection system will prioritize H-1B beneficiaries offered the highest salaries within their particular occupation and geographic location by selecting those registrations first.

Under the new rule, U.S. Citizenship and Immigration Services (USCIS) would 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 would then proceed in descending order to OES wage levels three, two, and one respectively.

USCIS will first allocate H-1B visas under the regular cap, which allows for 65,000 H-1B visas for individuals with at least a bachelor’s degree. USCIS will then complete the same allocation process for the 20,000 visas permitted under the advanced degree cap.

For H-1B employees working at multiple locations, USCIS will only consider the lowest OES wage level for the position during the lottery selection process.

The proposed rule was published on November 2, 2020, and comments on the rule must be submitted on or before December 2, 2020. This proposed rule will not take effect until after the notice and comment period ends, and the final rule is issued.

Please contact the immigration attorneys at Ryan Swanson if you have any questions about the H-1B cap selection and lottery process.

If you have additional questions, please feel free to contact any member of the Immigration Group at Ryan Swanson.

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.

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