On Friday, January 8, 2021, the outgoing DHS published a Final Rule changing the structure of the annual H-1B lottery selection. This rule is set to take effect on March 9, 2021, but there are several ways it could be delayed or rescinded so as not to impact the FY2022 H-1B Cap season, which begins in March 2021 with H-1B Registration. This summary is provided for informational purposes only.
Under the new H-1B selection process, USCIS intends to apply a “ranked” lottery based on the relative wage offered by the petitioning employer. By contrast, in all previous years where there were more H-1B petitions than the annual cap, a purely random lottery was conducted. At the time of H-1B cap registration, a petitioner will have to indicate which OES wage level (I, II, III, or IV) the offered wage will meet or exceed. This is not the prevailing wage level for the offered position (which is determined based on the position’s hiring requirements)—instead, this is a separate analysis. Petitioners will have to know what position and wage is being offered to the beneficiary, then review the OES wages (the four wage tiers published by the DOL) for the SOC code (occupational classification) in the geographic region that applies to the position. The highest level that the offered wage meets or exceeds will be the ranking wage level for H-1B cap selection.
When selecting H-1B registrations, USCIS will first choose from those that indicate level IV. If there are more registrations than the quota needed to fill the annual cap (usually about 100,000 to meet the 85,000 cap), it will be a randomized selection from only the level IV registrations. If there are not ~100,000 then all level IV registrations will be selected and USCIS will move on to the level III registrations. This process will be repeated until the quota is filled. Based on available data from the past two years, USCIS estimates that all level IV & III, some level II, and no level I registrations will be selected.
When the selected H-1B cap petitions are filed, USCIS intends to evaluate the offered wage against the registration and if the offered wage does not meet or exceed the OES wage level indicated on the registration, the petition will be denied.
T&S is monitoring this situation closely and will provide updated guidance to clients next month.
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