DHS Moves Forward With Wage Based Selection of H1-B Lottery Cap
The US Department of State today announced a final ruling on the wage-based selection process for H1-B lottery cap. Amending the current process wherein a random lottery is conducted to choose 85,000 registered H1-B petitioners to work in the US, the wage based process will prioritize employers that offer higher salaries to their foreign workers.
The final rule is expected to be published tomorrow and is expected to go into effect in 60 days. If approved, this year’s H1-B lottery 2022 will be conducted based on wages.
Wage Based H1-B Selection – What It Really Means
According to the new wage based selection, H1-B work visas will be given to the highest salary within a wage level. The employer will be expected to provide the highest wage levels as outlined in the Occupational Employee Statistics (OES). This is, in turn, determined by the prevailing wage for the said occupation in every area of intended employment. The employer should be capable of offering the highest proffered wage that equals or exceeds the relevant SOC code in that region.
Why Did The H1-B Selection Process Change To Wage Based Instead of Random?
According to U.S. Citizenship and Immigration Services, the current, random selection process allows employers to simply fill entry-level positions to reduce overall business costs, “making it difficult for businesses to plan their hiring, and failing to compete for the best and brightest international work force.”
The wage based selection process is intended to prioritize wages to protect the economic interests of U.S. workers and ensure that only the most highly skilled foreign workers are brought into the country.
Who Does This Impact
The new wage-based selection process if not contested by the new in-coming President will apply to the H1-B lottery 2022 conducted this April.
The new wage-based selection process will mainly impact H-1B registrations submitted by prospective petitioners seeking to file H-1B cap-subject petitions.
The new selection process will be implemented for both the H-1B regular cap and the H-1B advanced degree exemption.
When Will The Wage Based Selection Go Into Effect?
The final rule will be effective 60 days after its publication in the Federal Register. The DHS had earlier published a notice of proposed rulemaking on Nov. 2, 2020 but it was challenged in the US courts.
This will be applicable to the H1-B lottery cap this April.
What To Expect Next
If the new wage based ruling goes into effect in the next 60-days one or the other of the following will happen:
- No wage level 1 positions would ever be selected since it does not mirror prevailing wages according to OES. Only H1-B job positions with wage levels 3 and 4 would be selected.
- This would mean putting a lot of financial strain on employers and thus discouraging them from sponsoring skilled foreign talent.
- If a petitioner relies on a prevailing wage that is lesser than the OES survey’s corresponding level I then, the petitioner would automatically fall under “Wage Level I and below” and get disqualified.
- Further, if the beneficiary is meant to work from a third-party location, or client site, USCIS will notate only the lowest corresponding OES wage level in that region.
- However, this wage-based h1-b selection process is expected to be immediately challenged in courts and set in dispute, delaying its implementation
- There is also an additional clause that allows the in-coming President to postpone/halt/delay it by 60 days. This would mean that the ruling WILL NOT be applicable for this year’s H1-B lottery in April.
- However, if the final ruling goes into effect without any opposition, then the random selection of H1-B will be history.
Related Reading: President-elect Joe Biden’s Promises To H1-B Visa Holders
While we believe this was a last minute attempt to sabotage the H1-B lottery process before the President-elect, Joe Biden takes charge of The Oval office, the chances of this going through are small. It is expected to receive a lot of opposition from the big tech companies that are H1-B visa-reliant.
Stay tuned to this space to see how this wage-based ruling pans out in the next couple of days.