Updated: Federal Courts Vacate The Wage Based Selection Rule Of H1-B Lottery Cap

Update: A US Federal court has completely struck down the wage-based selection process of H1-B lottery cap applicants. This alternative rule proposed by the Trump administration has been ruled unconstitutional based on the fact that it was proposed by the then Acting Secretary of the Department of Homeland Security (DHS) Chad Wolf who had no authority to issue the rule in the first place.  

Timeline Of The Proposed Wage-Based Selection Rule

The final rule was expected to be published in the first week of January and go into effect in 60 days. However, the Biden administration said that it needs more time to evaluate it, and its consequences on the work visa. By delaying it, the public will get enough time to comment on it and give the proposal a fair hearing. Had this been approved before March, this year’s H1-B lottery 2022 would have been conducted based on the highest wages.

Wage Based H1-B Selection – What It Really Means

If the wage based selection process is finalized after two years, the current process of conducting a random lottery to choose 85,000 registered H1-B petitioners to work in the US will be amended. The wage based process will prioritize employers that offer higher salaries to their foreign workers.

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

Updated: Federal Courts Vacate The Wage Based Selection Rule Of H1-B Lottery Cap

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

Updated: Federal Courts Vacate The Wage Based Selection Rule Of H1-B Lottery Cap

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
Updated: Federal Courts Vacate The Wage Based Selection Rule Of H1-B Lottery Cap
Washington DC, United States February 2020,Joe Biden in a press conference
  • 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.

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.