DHS Publishes Final Rule to Replace H-1B Cap Random Selection Process with Wage-Based Selection Process

January 7, 2020

U.S. Citizenship and Immigration Services has announced a final rule that will modify the H-1B cap selection process and amend current lottery procedures by prioritizing H-1B Cap registration (or petitions, if the registration process is suspended) with a higher OES wage levels for the corresponding SOCs.  This 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.

Background.  DHS previously published a notice of proposed rulemaking on Nov. 2, 2020, and considered the public comments received before deciding to publish the proposed regulations as a final rule.  In the waning days of the Trump Administration, this Administration may seek to implement policy agenda before the Biden Administration enters into office on January 20, 2021.

·       How does the new rule change the lottery selection process? Under the lottery selection process when registrations (or petitions, if the registration process is suspended) exceed the numerical limitation, USCIS will rank, select, and prioritize registrations (or petitions) that reflect the highest corresponding Occupational Employment Statistics (OES) wage level that the proffered wage will equal or exceed for the relevant Standard Occupational Classification (SOC) code and area(s) of intended employment. If the proffered wage is lower than the OES wage level I, because it is based on a prevailing wage from another legitimate source (other than OES) or an independent authoritative source, USCIS will rank the registration in the same category as OES wage level I. If the H-1B beneficiary will work in multiple locations, or in multiple positions if the registrant is an agent, USCIS will rank and select the registration based on the lowest corresponding OES wage level that the proffered wage will equal or exceed. Where there is no current OES prevailing wage information for the proffered position, USCIS will rank and select the registration based on the OES wage level that corresponds to the requirements of the proffered position.

·       Does this the new rule affect both H-1B Regular Cap as well as the U.S. Master’s Cap? 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.

·       When will the rule go into effect?  This rule is expected to be published in the Federal Register on January 8, 2021, and the final rule will be effective March 9, 2021 (60 days after publication of the rule).

·       Will this OES prevailing wage-based selection process apply to FY 2022 (for calendar year 2021), and if so, what changes should an employer expect?  There are two factors that may impact the implementation of this rule: (1) This rule may be the subject of litigation that seeks to enjoin the rule from going into effect; (2) once the Biden Administration enters into office on January 20, 2021, the new Administration may place the rule on hold.  If the new rule is implemented, however, then employers should be prepared to identify the offered wage and prevailing wage level for the corresponding SOC as part of registration (or petition) preparation.

·       What should an employer do?  Employers seeking to sponsor foreign nationals for H-1B Cap should contact immigration counsel to discuss ongoing changes and plan for the upcoming cap season.