On Jan 07 2021 by William A. Stock

USCIS Publishes Final Rule to Modify H-1B Cap Selection Process

On January 7, USCIS announced the publication of a final rule for new H-1B petitions in 2021. The new rule gives priority to those petitions filed that offer “Level IV” wages (wages around the 75th-80th percentile of local wages for the occupation) per the Department of Labor’s OES survey, and then gives priority in descending order to petitions offering  Level III, Level II, and Level I wages until the numbers run out.

The selection of new H-1B petitions when demand exceeds the available 85,000 numbers has been by random selection, or “lottery,” for over a decade. This final rule states that random selection will only happen between petitions in the lowest wage band for which numbers are still available: if 50,000 petitions are used in Level IV and III, for example, and there are more than 35,000 petitioners offering Level II wages, then the lottery will be held only among those petitions offering Level II wages (with all Level I petitions being rejected).

The rule is scheduled to go into effect in 60 days, before this year’s lottery in March, but will require significant updates to the registration website to collect LCA data for it to work. 

Before planning H-1B filing strategy around this rule, however, employers should note that President-elect Biden’s inauguration is on January 20, well before the rule can go into effect. Likely, one of his first acts as President will be to delay the effective date of any final rule that has not yet gone into effect for 60+ days, which will include this rule. That delay will keep the rule from applying to this year’s H-1B lottery.

Even without Biden’s inauguration as the impediment to this rule becoming effective, it will likely be successfully challenged in federal court, because Congress has mandated that H-1B petitions be made available in the order in which petitions are filed, not the order of wages offered.

For more information on this rule and its effect on the H-1B Lottery, please join us for our annual H-1B cap season webinar on January 27. You can register for that here or click the button below.

2020 H-1B Lottery

 

The material contained in this alert does not constitute direct legal advice and is for informational purposes only.  An attorney-client relationship is not presumed or intended by receipt or review of this presentation.  The information provided should never replace informed counsel when specific immigration-related guidance is needed.

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