Last Updated on February 23, 2023
NOTE: This article was updated on Dec. 27, 2021 to reflect new information on the H-1B selection final rule, which has been withdrawn by the Department of Homeland Security (DHS).
Dec. 27 Update: DHS has issued a final rule withdrawing the “Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject H-1B Petitions” final rule, which is also called the H-1B Selection Final Rule.
The H-1B Selection Final Rule described below was issued on Jan. 8, 2021. The rule intended to change the random selection of the H-1B cap-subject lottery to one that prioritized selections based on wage. It was later vacated, or overturned, on Sept. 15, 2021 in Chamber of Commerce of the United States of America et al. v. United States Department of Homeland Security, et al. by the U.S. District Court for the Northern District of California. The H-1B Selection Final Rule would have changed the H-1B cap lottery selection process from a random selection process to one that prioritizes H-1B cap-subject petitions with higher prevailing wages.
This development is expected to maintain the random selection process for the annual H-1B cap lottery process. For additional information, please see the final rule in the Federal Register.
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Key Points
- DHS published a final rule introducing a wage-based H-1B CAP lottery selection process
- The rule was published on January 8, 2021 and takes effect March 9, 2021
- DHS published the proposed regulations on November 2, 2020
- The final rule remains unchanged from the initial proposed regulations
- USCIS will prioritize H-1B applications with the highest prevailing wage level first
- The rule applies to regular and advanced degree cap-subject H-1B petitions
- Additional litigation is anticipated
Overview
On January 8, 2021, the Department of Homeland Security (DHS) published a final rule in the Federal Register that modifies the H-1B CAP lottery selection process. The final rule is effective March 9, 2021.
Background
The proposed rule was initially published by DHS on November 2, 2020 before the agency decided to publish the regulations as a final rule. The forthcoming rule remains unchanged from the original regulations. It will modify the H-1B cap selection process from a random lottery-based selection process to a wage-based selection process, prioritize wages to protect U.S. workers, and incentivize employers to offer higher salaries and/or hire highly skilled foreign workers.
What are the Changes?
Through the final rule, DHS is amending regulations that control the process through which U.S. Citizenship and Immigration Services (USCIS) selects H-1B registrations for filing H-1B CAP-subject petitions. In prior years, the agency utilized a random computerized lottery-based selection process. Under the final rule, DHS will use a wage-based selection process that favors H-1B petitions for applicants who are offered higher wages. Based on the new H-1B selection process, USCIS will first select registrations based on the highest Occupational Employment Statistics (OES) prevailing wage level that the wage equals or exceeds or the applicable Standard Occupational Classification (SOC) code and area of intended employment. A first allocation would distribute H-1B selections under the 65,000 regular cap, followed by a second distribution for H-1B selections under the 20,000 advance degree cap.
Who is Affected?
The rule applies to regular H-1B and H-1B advanced degree petitions.
Looking Ahead
DHS is currently revising its online H-1B CAP registration form to request information the OES wage levels associated with the offered position for each registration. Additional litigation is expected. Updates will be provided as they become available.
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Envoy is pleased to provide you this information, which was prepared in collaboration with Ian Love, who is a Partner at Global Immigration Associates (GIA), one of the two independent U.S. law firms Envoy exclusively works with on the Envoy Platform (the "U.S. Law Firms").
Content in this publication is for informational purposes only and not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult an attorney at one of the two U.S. Law Firms working with the Envoy Platform or another qualified professional. On non-U.S. immigration issues, consult an Envoy global immigration service provider or another qualified representative.
