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USCIS Modifies H-1B Selection Process to Prioritize Higher Wage Offers

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Pasricha & Patel

The USCIS has announced that it is publishing a final rule that would change the previous H-1B cap lottery selection process by replacing the previous random drawing of H-1B cap petitions and instead assign H-1B visa numbers based on the Department of Labor’s Occupational Employment Statistics (OES) wage-tier level system. Essentially, the final rule will give selection priority to H-1B quota cases whose salary offers start in the highest wage level in their particular occupation and work location. That means, those H-1B quota cases with offer wages that exceed level 4 in the OES wage system would be assigned H-1B visa numbers, and then those H-1B quota cases with offer wages that are below level 4 but higher than level 3 would be assigned after that, and so on. There would still be a random lottery system used if the number of H-1B quota cases that exceed the particular wage level are greater than the H-1B visa slots that are still available.

This final rule would represent a drastic change in the annual H-1B cap selection process. While the USCIS claims that it wants to prioritize wages to protect the economic interests of U.S. workers and ensure that the most highly skilled foreign workers would benefit from the H-1B worker program, the practical effect is that this will disadvantage small and medium-sized employers, as well as public and non-profit organizations, because they will not be able to compete on the wage offer level with larger U.S. employers who will be able to offer higher wages.

This final rule is set to be published on January 8, 2021 and it will take effect 60 days from publication date, which would be March 9, 2021. The USCIS’s intention is that this would be in place in time for the upcoming Fiscal Year 2022 H-1B cap filing period. However, it is not clear whether the incoming Biden administration would actually implement this rule or hold off on its implementation. It is also likely that this rule will be subject to legal challenge in federal court even if it were to go into effect as planned by the USCIS.

Due to the sensitive and likely controversial nature of this rule, we will certainly keep an eye out for any further developments and update our readers with any changes in the coming days. We encourage readers to check back with us for any updates on this news as well as any other changes in immigration rules and regulations.

Should you have any specific questions about this rule or any other concerns regarding immigration-related matters, we suggest you contact our office to schedule formal consultation so that we can assist you further.