Opinions and Legal Insights

DHS Proposal Would End H-1B Cap Lottery and Award H-1B Visas Based on Wage Level

By:  Lana Morgan

The Department of Homeland Security (DHS) has proposed a change to the way United States Citizenship and Immigration Services (USCIS) awards cap-subject H-1B visas. Instead of a randomized lottery selection process, USCIS would award H-1B visas to workers that are offered the highest wages based on their occupation and geographic area of employment. DHS asserts that this change would incentivize employers to sponsor higher-skilled, higher-paid workers on H-1B visas. The agency hopes to have the new rule in place by the Fiscal Year 2022 H-1B cap season.

Broader changes to the h-1b visa program

The DHS proposed rule would give priority to H-1B workers who receive the highest prevailing wage level for their occupation based on the Department of Labor’s (DOL) system. H-1B visas beneficiaries would no longer be randomly selected.

 This proposal comes soon after two rules restricting the H-1B program were released earlier this month. Effective October 8, the Department of Labor (DOL) significantly increased minimum prevailing wage requirements for H-1B workers. Its companion DHS rule, effective December 7, will tighten the definition of “specialty occupation,” limit placements to one year for H-1B workers at third-party worksites, and reinstate contract and itinerary requirements.

Employers must pay a minimum Occupational Employment Statistics (OES) prevailing wage to H-1B workers based on the occupation type, the worker’s skills and experience, and the position’s geographic region. This practice is designed to protect the wages of local US workers.

Proposed changes to the h-1b selection process

Under the proposed rule, the randomized H-1B lottery selection process would end. In its place, USCIS would award H-1B visas based on wages to individuals both under the standard 65,000 cap and the 20,000 advanced degree cap.

H-1B visas would be distributed as follows:

  • H-1B visas would be awarded starting with the highest OES prevailing wage level, starting with level 4 (fully competent), and descending to level 1 (entry-level).
  • If an offered wage is lower than wage level 1 because the employer used a private wage survey, USCIS would consider the registration as a wage level 1.
  • If a beneficiary works in multiple locations, USCIS will rank them according to the lowest wage level that they will be offered.
  • If there is no OES prevailing wage information for a position, USCIS will rank the H-1B worker based on the prevailing wage that best corresponds to the position’s requirements.

next steps

The proposed rule will likely be published in the coming days. After that, the public will have 30 days to comment on the rule itself, and 60 days to comment on proposed form changes. DHS will review public feedback and may make changes to the rule before publishing the final rule in the Federal Register. While the publication process usually takes several months, DHS has stated that they would like the rule to be in effect in time for the Fiscal Year 2022 H-1B cap season.

The immigration professionals at Chugh, LLP are closely monitoring this proposed rule and will share updates as soon as they are available.

Disclaimer

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