USCIS Releases Advance Copy of Final Rule Delaying Effective Date of Wage-Based H-1B Selection Process

February 4, 2021 Ian Love

Key Points

  • USCIS has delayed the effective date of the final rule for the wage-based H-1B selection process
  • The final rule will now take effect on December 31, 2021 instead of March 9, 2021
  • FY2022 H-1B cap season will not be impacted by the new wage-based final rule
  • The rule will be published in the Federal Register on February 8, 2021
  • A 30-day public comment period will begin when the rule is published
  • The rule’s implementation is delayed to give the agency more time to adapt to the changes that the new wage-based selection process will bring

Overview

U.S. Citizenship and Immigration Services (USCIS) is delaying the effective date of the final rule “Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject H-1B Petitions” until December 31, 2021.

What are the Changes?

The final rule was originally expected to take effect on March 9, 2021. The rule will now have an effective date of December 31, 2021 instead.

The rule’s effective date will be delayed through the end of the year to give USCIS more time to adjust to the administrative impacts of the new wage-based selection process. Those adjustments include training staff, evaluating the program’s modifications, and conducting public outreach to ensure an effective transition to the new H-1B Selection Final Rule. Because the rule was published during the Trump administration, USCIS has also indicated that its leadership under the Biden administration will also be conducting a further evaluation of the rule.

Who is Impacted?

The rule’s delayed implementation date applies to FY 2022 cap-subject H-1B applicants. The FY 2022 cap-subject H-1B selection process will remain a random process rather than a wage-based selection process as intended with the implementation of the final rule.

What Should Employers and Applicants Know?

USCIS will apply the current regulations for the FY 2022 cap-subject H-1B selection process, which will remain a random selection process.

The final rule will be published in the Federal Register on February 8, 2021. A public comment period on the final rule’s delayed implementation date will remain open for 30 days following the rule’s publication in the Federal Register.


Envoy is pleased to provide you this information, which was prepared in collaboration with Ian Love, who is a Managing Attorney at Global Immigration Associates, P.C. (www.giafirm.com), Envoy’s affiliated law firm.

Content in this publication is not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult an Envoy-affiliated attorney or another qualified professional.

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