UPDATED: Wage-Based Selection Process for the H1B Lottery
USCIS Final Rule Creating a Wage-Based Selection Process for the H1B Lottery
February 4, 2021 UPDATE: USCIS has delayed implementation of this rule until December 21, 2021, stating that they "do not have adequate time to complete system development, thoroughly test the modifications, train staff, and conduct public outreach" in time for the March 2021 H1B Lottery. DHS leadership will also evaluate the rule and its policies to determine if they should be amended.
What the Rule Does: In place of the random H-1B lottery, USCIS will offer the 85,000 H1B visas to the employers offering the highest salaries. This process will be used for the 65,000 petitions under the annual limit and 20,000 petitions for individuals with an advanced degree from a U.S. university.
“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,” according to the regulation.
Probable Impact: DHS predicted no individuals paid Level 1 wages will be selected for H-1B petitions, and about 25% of individuals who would receive Level 2 wages also will not be chosen. DHS believes that all applicants offered Level 3 and Level 4 wages will be selected.
As an example, here are the Software Developer, Applications, wage levels for San Francisco County:
Level 1 Wage:$46.45 hour - $96,616 year Very unlikely to be selected
Level 2 Wage:$58.14 hour - $120,931 year 75% chance of selection
Level 3 Wage:$69.83 hour - $145,246 year Very high chance of selection
Level 4 Wage:$81.52 hour - $169,562 year Very high chance of selection
Ways to Stop the Rule: This rule may not go into effect, but it is too early to know. A court could issue an injunction or strike down the rule. The Biden administration may have some recourse to amend the rule. However, that could take several months and they have not given an indication of how they will handle the issue.
Will this change the H1B lottery registration procedure? As of writing, the lottery registration system has not changed. We anticipate that USCIS will publish more guidance prior to March 1, 2021 and will be monitoring the issue.