DHS Publishes Final Rule to End H-1B Visa Lottery

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January 21, 2021

On January 8, 2021, Department of Homeland Security published a “final rule’” to replace the current lottery process for H-1B Cap-Subject Visas. According to the American Immigration Lawyers Association (AILA), the new system will select registrations based on “the highest Occupational Employment Statistics (OES) Prevailing Wage level that…equals or exceeds…the relevant Standard Occupational Classification (SOC)” codes.

Main Provisions of the Rule

According to AILA, the main provisions of the final rule are as follows:

USCIS will rank and select registrations on the basis of the “highest OES wage” beginning with OES Wage Level IV and down to Level I in descending order.
After this selection of the 65,000 H-1B Cap petitions, USCIS will use “the same ranking and selection process” to meet the advanced-degree exemption
If the beneficiary works in multiple locations, USCIS will rank the Foreign National based on the “lowest corresponding wage”
Without a OES wage, USCIS will rank and select based on the OES wage level that corresponds to the proffered position
USCIS has further provisions to deny or revoke subsequent new or amended petitions filed if “USCIS determines that the filing…is part of the petitioner’s attempt to unfairly decrease the proffered wage [after receipt]…to increase odd’s of selection.”

The rule, part of “midnight regulations” advanced by the outgoing Trump administration would be set to go into effect on March 9.

Legality and Biden Administration

However, with the Biden Administration safely sworn in yesterday, issued a memorandum to delay the implementation of this rule and other Lame Duck regulations. According to the AILA, the new administration will adopt a 60 day delayed effective date for the new rules to give them time to review their legality and efficacy. This delay could move the effective date to either March 21, 2021 (60 days after the date of signing) or to May 8, 2021 (60 days from the regulations effective date). Both dates will cause issues for employers and foreign nationals alike as H-1B Cap season rapidly approaches.

The legality of the rule also comes into play as the previously acting DHS head has had multiple rules made void, according to the AILA.

At Forbes, Stuart Anderson warns that the rule could cripple the ability of “startup companies, public schools, younger information technology professionals, and health professionals in rural areas.” In his piece he quotes other attorneys who suggest the rule has questionable legality.

The question still remains what the Biden Administration will do with the rule. Anderson wrote that a Biden policy document “indicates support” for issuing H-1B visas based on salary, though admits the document doesn’t seem to appreciate the implications of such a measure. The document states the administration wishes to “ensure” the rules are “aligned with the labor market and not used to undermine wages,” and the incoming administration will support “expanding the number of high-skilled visas and eliminate limits on employment-based visas by country.”

As the new President’s Administration addresses this rule, we will update our website accordingly.

TAGS: H-1B Cap, H-1B Cap Lottery, President Biden, USCIS