USCIS Delays Wage-Based H-1B Selection Rule for Upcoming Fiscal Year 2022 H-1B Cap Lottery
On January 7, 2021, the U.S. Citizenship and Immigration Service had announced new H-1B selection final rule which would have replaced the random lottery selection process with a system that allocated H-1B visa numbers based on the U.S. Department of Labor’s Occupational Employment Statistics (OES) four-level wage system. The end result would have given priority in the H-1B selection process to H-1B applicants whose offered wage falls within the highest wage level for their occupation and geographic area. It would have allowed U.S. companies who could afford high salaries to take up most of the slots in the H-1B quota system, and it would have prevented small and medium sized U.S. companies from being able to participate in the H-1B quota selection process on a level playing field.
USCIS has now decided to delay the implementation of this rule until at least December 31, 2021. USCIS explains that the delay will allow the USCIS more time to develop, test, and implement the proposed changes to the H-1B registration system and selection process, while also allowing the USCIS the necessary time to train staff and perform public outreach and also allow stakeholders enough time to adjust to the new rule.
It is not clear whether the Biden Administration will still decide to implement the wage-based H-1B selection process as initially introduced by the Trump administration, or whether there will be changes made to the rule. It is also possible that the Biden administration may decide not to implement the final rule at all. That remains to be seen.
Importantly, the same H-1B quota registration and random lottery process that was put in place in 2020 as part of the Fiscal Year 2021 H-1B quota lottery will remain in use for this year’s Fiscal Year 2022 H-1B quota lottery process, which should start in mid-March 2021.
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