USCIS Publishes Final Rule to Significantly Alter H1B Lottery Process

Today, the U.S. Citizenship and Immigration Services (USCIS) published a final rule in the Federal Register replacing the H1B lottery registration system with one that prioritizes cases filed based on wage level. The rule is scheduled to go into effect in 60 days. However, its implementation likely will be delayed once President-Elect Biden takes office later this month.

Overview of Rule

The final rule essentially is identical to the rule as it was proposed in late October. The USCIS would continue to utilize the regular cap and the master’s cap. Rather than randomly selecting registrations, however, the final rule would have the USCIS rank registration based on the highest occupational employment statistics (OES) wage level that the proffered wage would equal or exceed for the relevant SOC code and in the area of intended employment.

What this means is that, in submitting an H1B registration, the employer would need to indicate the SOC for the position, the intended place/s of employment, and the offered salary. Based on this data, the USCIS could determine what the OES wage level for the position would be. Positions that meet the wage level IV requirement would get priority. If more than 65,000 registrations are submitted in the regular cap with wage level IV salaries, a lottery would be held among just those registrations. If not, all the wage level IV registrations would be selected and the process would repeat itself for wage level III positions and so on. The same system then would be used for registrations submitted that are eligible for the master’s cap.

Conclusion

Assuming that President-Elect Biden delays implementation of the rule, it presumably would not go into effect for the upcoming fiscal year 2022 lottery. For the time being, the assumption is that the registration and lottery this year will proceed in largely the same manner as the registration / lottery held last year. As of yet, the USCIS has not announced when the registration will be held, but it mostly likely will occur in March.

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