November 12, 2020

DHS Proposes rule to Rules to Change H-1B Cap Selection Process

This message is meant only for employers who plan to submit an H-1B cap-subject petition in the FY21 cap lottery. If that does not apply to you, you may ignore this message.

DHS Proposes rule to Rules to Change H-1B Cap Selection Process

On November 2, 2020, the Department of Homeland Security (DHS) announced a proposed rule change that would replace the H-1B “Cap” lottery with a wage-based selection process. The notice of proposed rulemaking has been published in the Federal Register and a 30-day comment period is open. If a final rule is later implemented after the comment period closes, U.S. Citizenship and Immigration Services (USCIS) would rank the submitted registrations or petitions based on the Occupational Employment Statistics (OES) wage levels, from Level IV (the highest) to Level I (the lowest). The new rule would not affect the order of selection between the regular cap and the advanced degree exemption, so USCIS would continue to first award 65,000 slots to the “Regular Cap” registrants, before using the same ranking and selection process to select registrations for the 20,000 “Master’s Cap” advanced degree exemption.

Paired with recent Department of Labor wage changes, this would mean, for example, that an H-1B petition for a Software Developer, Applications position in Phoenix would have better odds of selection in the H-1B cap if the employer offers the Level IV OES wage of $165,526/year as the salary instead of the Level I wage at $92,685/year, regardless of the actual minimum requirements for the position or the employer’s normal salary offering.

According to Sharvari Dalal-Dheini, Director of Government Relations for the American Immigration Lawyers Association, “This rule, even by the Trump administration’s own admission, clearly violates congressional intent, which rightfully prioritizes the selection of H-1B visas in the ‘order in which they are filed’ and does not limit who can file a petition to those who will pay the most.” We expect that once implemented, this regulation will be swiftly challenged in federal court.

Let’s Talk

Let us help you navigate the complexities of immigration law and work towards a positive outcome. Your immigration journey starts here.

"*" indicates required fields