Immigration Alert: H-1B Cap Lottery will be Weighted by Offered Wage

January 7, 2021

U.S. Citizenship & Immigration Services (USCIS) has just released an advance copy of a new H-1B regulation, which will be officially published tomorrow. In short, the new rule will 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 will go into effect sixty (60) days after its publication, in early March. As such, it will be effective for the coming FY2022 H-1B “cap season,” during which employers compete for the limited number of H-1B visas made available each year. Highlights of the new rule include the following:

• H-1B visas will be electronically sorted and prioritized in the annual lottery selection process, based on the highest Prevailing Wage level, as defined by the U.S. Department of Labor, which each candidate’s offered wage equals or exceeds.

• H-1B petitions reflecting an offered amount which is equal to or above Prevailing Wage Level 4 will be given the highest preference. Wage Levels 3, 2, and 1 will each be given less priority, in descending order.

• If there is no available Prevailing Wage data for a given position, USCIS will rank H-1B petitions based on the Wage Level that most closely corresponds to the described position.

• A computerized lottery will be used if the number of H-1B registrations for a given Wage Level exceeds the number of available H-1B visas.

USCIS is actively retooling its online H-1B cap registration site, to accommodate the new, wage-based lottery system. The stated goal of USCIS is to have the computerized wage ranking system in place, prior to the beginning of the FY2022 cap season in the coming months.

It is possible that the new cap registration system will be enjoined in litigation, or suspended altogether by the incoming administration. Clients are advised, however, that USCIS appears to have followed all of the necessary administrative rulemaking steps, in introducing the new regulations. Moreover, representatives of the incoming Biden-Harris administration have expressed support for a wage-based H-1B lottery. The adoption of this process for the coming H-1B cap season is therefore likely.

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.