Immigration Alert: H-1B 'Cap' Selection Process NOT Based on Wages

In January, U.S. Citizenship & Immigration Services (USCIS) had released an advance copy of a new H-1B regulation, to give priority to new H-1B filings on behalf of foreign national candidates whose offered salary falls within the highest ‘Prevailing Wage’ level for their occupation, and geographic area of employment. The new rule was set to go into effect in early March. Based on this timing, the wage-based process would have been in place for the coming FY2022 H-1B “cap season,” during which employers will compete in a lottery for the limited number of H-1B visas made available each year.

Just yesterday, USCIS announced that the wage-based H-1B selection process will not be put into effect, for the coming H-1B cap lottery. As a reason for the delay, the agency has cited a need for more time to develop, test, and implement modifications to the H-1B registration system through the ‘MyUSCIS’ online portal. As a result, the effective date of the final rule has been delayed from March 9, 2021, to December 31, 2021. For the upcoming H-1B cap season, USCIS will apply the current regulations, which provide for random selection, not based on offered wage, to the coming H-1B registration period.

Additional information on the delayed effective date is available in the associated Federal Register notice. We will continue to monitor this situation closely, and provide updates as they become available. Please contact me or another member of our Immigration Practice Team if you have any questions, or would otherwise like to discuss.