On January 8, the United States Citizenship and Immigration Services “USCIS” agency published a final rule changing the H-1B cap-subject selection process (“H-1B Lottery”).
What are the rule changes?
In the past, USCIS has used a random selection process, without regard to the type of position or salary, until approximately 85,000 H-1B candidates have been selected as congressionally mandated.
The final rule will now take into account the offered salary, and will rank H-1B registrations based on the wage level of the offered position. During the registration process, USCIS will request the employer to provide the offered salary and corresponding Standard Occupational Category “SOC” code and wage level (levels 1-4). USCIS will then rank positions according to the wage level, with the highest offered salaries being selected in descending order, beginning with wage level 4. USCIS claims its intention is to incentive employers to pay higher wages and to sponsor high-skill positions, which is commensurate with higher salaries.
The rule is set to take effect on March 9, right before the 2021 H-1B lottery selection is to take place.
How this rule is expected to be implemented?
The incoming Biden administration has indicated that they will halt or delay all final rules which have not taken effect on January 20, in order to review regulations created during the “lame duck” session. Procedurally, the Biden administration could choose to delay the implementation of the rule for up to 60 days. If this H-1B final rule is in fact delayed, then it will not be in effect for the 2021 H-1B lottery.
While it is not yet confirmed if the Biden administration will delay the implementation of the new salary ranking selection process, we are hopeful that they will do so, which means that the rule may not be implemented for this year’s lottery. That being said, with a lot on the new Administration’s plate, it is important to understand and plan for this possibility.
We will continue to closely monitor the H-1B lottery selection process and will have further updates after the presidential inauguration, when we expect further clarity of the final rule.
If you have any questions about the upcoming FY 2022 H-1B lottery or the selection process, please reach out your Bridge legal team.
Do you need help applying for the lottery this year for your international employees? Find out more about what our full service team can do to help you register and, if selected, file your petition.
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 a Bridge-affiliated partner attorney or another qualified legal professional.