DHS Issues Final Rule Modifying H-1B Cap Lottery with Selection Based on Wage Level
On January 8, 2021, a new rule was published by the Department of Homeland Security (DHS) which significantly impacts the H-1B visa lottery process. This regulation is scheduled to take effect on March 9, three weeks before the earliest date that a new H-1B application can be filed. The rule would set a different process for the H-1B lottery based on salary, from highest to lowest. The regulatory language states, “USCIS will rank and select the petitions received on the basis of the highest Occupational Employment Statistics (OES) wage level that the proffered wage equals or exceeds for the relevant Standard Occupational Classification (SOC) code in the area of intended employment, beginning with OES wage level IV, and proceeding in descending order with OES wage levels III, II and I.”
Immigration attorneys and businesses argue that this rule violates the H-1B statute and makes it extremely difficult for younger workers to obtain H-1B approvals. While the DHS stated in its response to earlier comments that this rule would not impact universities in their ability to attract students or international students in their ability to start entry-level jobs, we believe this is untrue.
USCIS received nearly 1500 comments to the proposed rule before it was finalized and rejected them all. There are many questions about the legality of the rule. For example, the H-1B statute mandates that visas be issued in the order in which they are received; this rule rejects that principle and therefore is “ultra vires,” meaning it goes beyond legal authority. There will surely be litigation challenging it.
Most immigration lawyers believe that the new Biden administration may also intervene to delay or revoke the regulation, which will likely mean that it will not take effect during this year’s H-1B lottery period. Stay tuned to see what the Biden team will decide regarding this regulation of questionable legality that would massively change not only the H-1B process but would determine who is entitled to H-1B status based merely on salary.
Rest assured that we are closely watching new developments and will keep our clients well informed in how best to proceed with this year’s H-1B cap filings.