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Proposed Change to Replace the H-1B Cap Lottery with a Wage-Based Selection Process

Posted November 3, 2020Cynthia S. Coulange - Sr. AssociateH-1B

The Department of Homeland Security has submitted a proposed rule to change the process which governs the way H-1B visas that are subject to the annual cap are selected. Each fiscal year there are 65,000 H-1B visas available for individuals who possess at least a bachelor’s degree (or its equivalent), and an additional 20,000 for those who have a U.S. master’s degree.   Currently, USCIS conducts a random lottery of the hundreds of thousands of cap-subject H-1B applicants each year for these available visas.

Proposed Changes:

  • Under the proposed rule, USCIS would select petitions using a wage-level-based process instead of the current lottery process. Petitions with higher wage levels will be prioritized over petitions which utilize lower wage levels.
  • Under this system petitioners are expected to potentially have the ability to improve their chance of being selected by agreeing to pay H-1B beneficiaries higher wages.

Expectations:

The administration argues that this proposed rule will further the Trump administration’s goal of prioritizing H-1B visa for employers who employ higher skilled and higher paid workers. The Department of Homeland Security will open a public comment period once the notice of proposed rulemaking is published with the Federal Register. Interested parties will have a 30-day period to submit comments regarding the proposed rule. Subsequently, interested parties will have an additional 60 days to comment on the proposed information collection before the rule is finalized. DHS will subsequently review the comments, consider them carefully, and draft responses before issuing the final rule.

Like other recent immigration proposals, this one is prone to challenge, particularly since DHS itself admitted in its 2019 preregistration regulation the following: "DHS believes, however, that prioritization of selection on other factors such as salary, would require statutory changes.” The NPRM is scheduled to be published in the Federal Register on November 2, 2020 and comments are due 30 days later.

Meltzer Hellrung will continue to monitor the proposed rule change and provide updates as available. If you have any questions or concerns on how the above may impact your foreign national employees, please contact your designated Meltzer Hellrung attorney or consulation@meltzerhellrung.com.