USCIS has
announced that it will publish a
Final Rule tomorrow which makes significant changes to the process of filing cap-subject H-1B petitions. Instead of a random lottery, the new system will be based on salary offers, awarding cap numbers first to those earning the highest salaries in their occupational category and geographical area of employment. H-1B cap registrations with salary offers that meet level 4 prevailing wages will be selected first, then level 3, and so on. USCIS declined to make any modifications to the regulatory text after public comment, so the language of the final rule matches the Notice of Proposed Rulemaking which was published in
November 2020.
The new rule is scheduled to take effect on March 9, 60 days from the date of publication, in advance of the Fiscal Year 2022 cap selection this spring. Following are some of the key provisions of the Final Rule:
- If more registrations are received during the annual initial registration period than necessary to reach the H-1B cap, USCIS will rank and select the registrations received on the basis of the highest OES wage level which the salary meets (which may be higher than the level listed on the LCA), beginning with OES wage level 4 and proceeding in descending order with OES wage levels 3, 2, and 1.
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If the employer uses an alternate survey and the offered wage falls below an OES wage level 1, USCIS will rank the registration as OES level 1.
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USCIS will use this process for the standard H-1B cap and then, if necessary, for the the advanced-degree exemption ("Master's Cap").
- If USCIS receives and ranks more registrations at a particular wage level than the projected number needed to meet the H-1B cap, USCIS will randomly select from all registrations within that particular wage level.
- If the H-1B beneficiary will work in multiple locations, USCIS will rank and select the registration based on the lowest corresponding OES wage level that the offered wage will equal or exceed.
- Where there is no current OES prevailing wage information for the offered position, USCIS will rank and select the registration based on the OES wage level that corresponds to the position requirements.
There is a possibility that the incoming Biden Administration could postpone implementation of the Final Rule, though they have not yet given any indication of an intent to do so. The rule could also be challenged in federal court. We will provide additional information as it becomes available, including how this rule will be implemented if it takes effect.
