USCIS Plans to Adopt a Wage-Based Selection Process for H-1Bs To Be Effective in 60 Days

Today, USCIS released an advance copy of new rule that will amend current H-1B lottery procedures, allowing prioritize wages to ensure H-1B visas are awarded to the most highly skilled foreign workers. The new rule is scheduled to be formally published on January 8, 2021 and will be effective 60 days from the date of publication, that is approximately March 9, 2021.

This new rule will only affect H-1B registrations (or petitions, if the registration process is suspended) submitted by prospective petitioners seeking to file H-1B cap-subject petitions. It will be implemented for both the H-1B regular cap and the H-1B advanced degree exemption, but it will not change the order of selection between the two as established by the H-1B registration final rule.

Highlights of the new rule:

1. The new rule will take effective on March 9, 2021.
2. It only affects H-1B cap-subject petitions, including both regular and advanced degree cap.
3. USCIS will rank and select the registrations received generally on the basis of the highest OES wage level that the proffered wage equals or exceeds for the relevant 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. The proffered wage is the wage that the employer intends to pay the beneficiary.
4. If the beneficiary will work in multiple locations, USCIS will rank the filing according to the lowest corresponding OES wage level that the offered wage will equal or exceed.
5. This final rule will not affect the order of selection as between the regular cap and the advanced degree exemption. The wage level ranking will occur first for the regular cap selection and then for the advanced degree exemption.

Once implemented, it is expected to have negative impact on new graduates earning level I wages and other entry-level workers, compared to the old lottery process.

Whether the new administration will invalidate this new rule is unclear but it is possible that this new rule will be challenged at federal court. We will keep monitoring on this and provide updates.