Trump Administration Finalizes Rule Replacing H-1B Lottery With Wage-based Approach

प्रकाशित मिति : पुस २३, २०७७ बिहीबार

The Department of Homeland Security has finalized a regulation that will end the longstanding random lottery system for H-1B work visas and replace it with an approach that favors higher-paid foreign workers.  The regulation  will supplant the random, computerized H-1B lottery with a selection process based on the Department of Labor’s wage level system.

Under the regulation, H-1B visa numbers will be allocated according to salary levels, giving priority to those earning the highest salaries in their respective occupations and geographic areas of employment. The final rule is set to take effect 60 days from publication, in time for the Fiscal Year 2022 cap filing season this spring. The rule could, however, be placed on hold by the incoming Biden Administration as it reviews this and other rules finalized in the last days of the Trump Administration. The regulation could also be challenged in federal court.

It will not change the order of selection between the regular cap and the advanced degree exemption.

Under the final rule, DHS would largely discontinue the computerized H-1B cap lottery selection process and replace it with a wage-level-based allocation process. A first allocation would distribute H-1B numbers under the 65,000 standard cap, followed by a second allocation that would distribute H-1B numbers under the 20,000 advanced degree cap.

Allocation of H-1B quota numbers would be based on the highest OES prevailing wage level that the offered wage equals or exceeds, starting with level IV, and then continuing to select cases in descending order from OES wage levels III, II and I.

Where an offered wage is lower than the OES wage level I because a private wage survey is used, USCIS will rank the registration in the same category as OES wage level I.

If the beneficiary will work in multiple locations, USCIS will rank the filing according to the lowest corresponding OES wage level that the offered wage will equal or exceed.

Where there is no available OES prevailing wage information for the offered position, USCIS will rank the filing based on the OES wage level that corresponds to the requirements of the position. A computerized lottery would be used if the number of registrations for a specific wage level exceeded the number of H-1B cap slots available.

In preparation for the rule, DHS is currently revising its online H-1B cap registration form to request information on the OES wage level associated with the offered wage and position. These changes would become effective upon implementation of the final rule. OES wage information provided in the H-1B registration would be compared to any H-1B petition filed in connection with that registration to ensure that the petitioning employer is adhering to the wage level it designated.

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