Law Office of Leila Freijy PLLC
Immigration & Compliance Law 
USCIS publishes final rule on wage-based H-1B lottery selections
On 1/8/2021, the USCIS final rule creating a wage-based selection process for H-1B registrations was published. This rule, if implemented, will change the H-1B lottery selection process from selecting H-1B cap-subject petitions on a random basis to favoring H-1B cap-subject petitions for individuals who will be paid the highest wages. Under this new rule, individuals who would be paid at a Level 4 (highest) wage for the geographic area of their employment, would have their petitions selected first and those paid at a Level 1 (lowest) wage would have their petitions selected last (assuming any H-1B visa numbers remained).

The rule's effective date is 3/9/21, which raises several issues:

  1. USCIS will need to update the H-1B lottery registration process so that wages/prevailing wages are provided as part of the H-1B registration process. This information was not previously provided. It is unclear whether there would be sufficient time for USCIS to update the H-1B lottery registration process to include this additional information.
  2. In 2020, the H-1B lottery registration process was conducted from March 1 - 31, 2020. The implementation of this rule is scheduled for 9 days after the registration process would normally have started.
  3. It is unclear if President-Elect Biden will withdraw this once he takes office later this month.
  4. If not withdrawn, it is very likely that it will face multiple legal challenges in the courts and/or its implementation may be delayed for one year due to the tight timeframe to implement it this year when the start of the H-1B lottery registration process is only about 6 weeks away.

We will monitor the situation and keep you apprised of any further updates.
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Leila Freijy
Law Office of Leila Freijy PLLC
Law Office of Leila Freijy PLLC|
Immigration & Compliance Law
Leila Freijy, Esq.
3150 Livernois Rd #103
Troy, MI 48083
248.287.4115 (fax)