On Wednesday, January 7, 2021, U.S. Citizenship and Immigration Services (USCIS) announced a final rule that, upon taking effect, would change the H-1B cap selection process from a random lottery to a wage-based selection process. USCIS explained that the rule is intended to “protect the economic interests of U.S. workers and better ensure the most highly skilled foreign workers benefit from the temporary employment program.”
If the rule goes into effect, it will change how H-1B cap-subject registrations are selected for petitions to be filed this coming April. Under the new rule, USCIS will give priority to registrations that are filed with higher wage levels under the Occupational Employment Statistics (OES) wage survey. Petitions listing the highest level (Level IV) will be selected first, with the next level selected next, working downwards until visa numbers are exhausted.
It is possible this rule may never take effect, as the incoming Biden administration intends to delay the effective dates of any pending final rules which have not taken effect by Inauguration Day. It is thus possible the incoming Biden Administration will withdraw this rule before it takes effect.
J&H will continue to monitor for developments on this matter and will provide substantive updates as information becomes available.
The USCIS news release on the final rule can be found here. The unpublished final rule, which is expected to be published on Friday, January 8, 2021 and is scheduled to become effective on March 9, 2021, can be found here.
