On 10/28/2020 the Department of Homeland Security (DHS) announced a proposed rule to amend the H-1B regulations governing the process by which the annual H-1B lottery is conducted.
Under the new rule, USCIS would first select registrations based on the highest Occupational Employment Statistics (OES) prevailing wage level that the offered wage equals or exceeds. This would replace the random H-1B selection process with one that favors the highest wages. So, offering a Level 4 OES wage would improve chances of selection in the H-1B lottery.
This rule could make it virtually impossible to be selected in the annual H-1B lottery unless the beneficiary was being offered a Level 3 or 4 wage. This rule will likely also drive away foreign students from U.S. universities as it is unlikely that an employer will offer a recent graduate a Level 3 or 4 wage and so their prospects of being able to remain and work in the U.S. would be diminished. While this will clearly impact U.S. universities that rely on the significantly higher tuition paid by foreign students, it will also impact the pipeline of highly educated foreign students, especially those in STEM fields, that U.S. businesses rely on.
The final rule was published on 1/8/2021, but implementation was delayed by the Biden administration, which will be taking another look at the rule. Public comments on this rule are due by March 10, 2021. If the implementation of this rule will impact your business, I urge you to submit a comment before the deadline and let the USCIS hear how this would impact your business.