Proposal To Replace H1-B Lottery Selection Process With Wage-Based Selection By March 2021

The Department of Homeland Security has announced a Notice for Proposed Rule Making (NPRM) that would change the way H1-B petitioners will be selected. The new system will be based on wage levels and is intended to replace the current random lottery selection through a computerized process. The new process proposes giving priority to the highest wage earner in the said occupation in that region thereby, eliminating the entry-level foreign workers.

How Does the New Wage-Based H1-B Selection Process Work?

  • The DHS will rely upon the Occupational Employment Statistics (OES) calculation for wages in each geographic region which is then divided into 4 wage-levels;
  • Employers recruiting foreign workers are expected to give wages above the OES levels for these H1-B visa holders;
  • Per the new proposed process, only those H1-B beneficiaries who are offered the highest wages (within their occupation categories) by their petitioning employers will be given priority.
  • If the wage level is not calculated per the OES wage levels, then USCIS will automatically categorize that petition under wage level I;
  • Given that these wage levels are calculated based on geographic regions, and the beneficiary will work in different locations, USCIS will adjudicate the petition based on the lowest offered wage level;
  • If there is no available OES prevailing wage information for the job profile, USCIS will automatically consider the petition based on the OES wage level that corresponds to the requirements of that position;
  • This new process will be applicable to H-1B registrations submitted by prospective petitioners seeking to file H-1B cap-subject petitions;
  • It will be applicable to both the H-1B regular cap and the H-1B advanced degree exemption. 

It is important to note that the order of selection between the 65,000 H-1B regular cap and the 20,000-advanced degree exemption cap had been reversed starting April 1, 2019. 

Where Does The Proposal Stand Today?

This DHS proposal to replace the H1-B selection process comes on the heels of the latest H1-B wage increase ruling by US Department of Labor implemented on October 8, 2020. In this, the Occupational Employment Statistics (OES) prevailing wages for the H1-B program were significantly increased effective immediately. 

The intent of the new process is to ensure employers only seek the best, most specialized talent from abroad and pay higher wages to them. This would ensure they are offered “corresponding wage levels in order to better protect the economic interests of U.S. workers, while still allowing U.S. employers to meet their personnel needs and remain globally competitive.”

Next Steps…

  • DHS intends to fast track this new proposal in time for next year’s lottery in March 2021;
  • DHS will publish this new proposal in the Federal Register shortly.
  • The public will have 30 days to comment on the rule and 60 days to comment on related forms.
  • The feedback and responses will be reviewed, some changes will be accommodated and a final rule will be published. 
  • The oncoming Presidential elections may or may not have an impact on these timelines but it is anticipated that many H1-B dependent employers like major players in the tech and medical industry are expected to oppose this ruling and file a suit against it.

Stay tuned to this space for the updates on how the ruling passes.