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:
- 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.
- 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.
- It is unclear if President-Elect Biden will withdraw this once he takes office later this month.
- If not withdrawn, it is very likely that it will face multiple legal challenges in the courts and/or its implementation may be delayed for one year due to the tight timeframe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.
