DHS Issues Final Rule Modifying H-1B Selection “Lottery” Process

DHS Issues Final Rule Modifying H-1B Selection “Lottery” Process

On January 8, 2021, the Department of Homeland Security (DHS) will publish a final rule that will modify the H-1B Fiscal Year Cap Selection “Lottery” process. Instead of a random, computerized H-1B cap lottery, the new process will prioritize selection of foreign nationals whose offered wage is in the highest wage level for their occupation and geographic location according to the Department of Labor’s Occupational Employment Statistics (OES) four-level wage system. It will not change the order of selection between the regular cap and the advanced degree exemption.

This rule is scheduled to take effect 60 days from the date of publication (April 1, 2021) which would impact the Fiscal Year 2022 H-1B lottery registration. However, the incoming Biden Administration has the authority to delay all regulations that are not final on January 20, 2021 for additional 60 days. If the Biden Administration chooses to delay, this new rule will not impact this year’s H-1B lottery process. In addition, it is possible that the rule will be challenged in federal court.
What does this mean?

1.     This rule does not take effect immediately, and it is possible that this rule will be delayed, allowing this year’s lottery process to proceed under the current law.

2.     If the Biden Administration allows this rule to proceed, the H-1B cap numbers will be distributed based on the highest OES prevailing wage level. Registrations will be grouped based on the four OES wage levels and computerized random selection will occur within each wage group in a descending order of the wage level, if the number of registration for a specific wage level exceeds the H-1B visa numbers. If the offered wage is lower than the level I OES wage, the case will be ranked the same as OES wage level I.

What are key points for Employers to keep in mind?

1.     The H-1B cap registration process is expected to proceed as scheduled.

2.     DHS has not updated its registration platform to accommodate this new rule change.

3.     It is possible that the Biden Administration may delay this rule, which means it will not impact this year’s H-1B lottery system.

4.     If the rule becomes effective, entry level hires may have a more difficult time being selected in the lottery, if their wages are in the lower wage level according to the Department of Labor’s OES wage survey.

How is MT responding?

1.     MT is monitoring the situation very closely. USCIS is expected to issue additional instructions on how it plans to implement the rule, and we will be watching announcements from the incoming Biden Administration.

2.     MT will proceed with our annual fiscal year H-1B season as planned and will provide adjusted guidance as we learn more about the new rule.   

U.S. Coronavirus Visa Bans Extended
Trump extended the nonimmigrant visa ban and COVID-19 related visa ban that affects H, L, J visas as well as most immigrant visas which were set to expire on December 31, 2020. These bans are now set to expire on March 31, 2021. Additional details on the visa bans can be found here.

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