Today, the Department of Homeland Security has published an advanced copy of the final regulation that would change the current random H-1B lottery system. The regulation would distribute new H-1B visas based on the wage level of the salary offer, with visas ultimately going to the highest bidder.
The current electronic registration form requires the Beneficiary’s name, gender, date of birth, country of birth, country of citizenship, passport number, and whether Petitioner is requesting considerations under the advanced degree exception. Under the new regulation, the Petitioner also would be required to provide the highest OES wage level that the proffered wage equals or exceeds for the relevant SOC code in the area of intended employment. The proposed rule also notes that for those Petitioners relying on a prevailing wage that is not based on the OES survey (ie. Private wage survey), if the proffered wage were less than the corresponding level I OES wage, the Petitioner would have to select the “Wage Level I and below” box on the registration form. Further, if the Beneficiary will be working in multiple locations, USCIS would rank and select the registration based on the lowest corresponding OES wage level.
DHS believes that replacing the random selection process with ranking based on wage level will incentivize petitioners to offer higher wages to H-1B workers, increase the average and median wage levels of H-1B beneficiaries, and “maximize H-1B cap allocations, so that they more likely would go to the best and brightest workers.”
The final regulation is expected to be published tomorrow, but does not take effect for 60 days. This means that the incoming Biden administration may be able to block it from taking effect. Biden’s transition team has already announced his plans to issue a memo on his first day in office to halt or delay regulations that have not taken effect by Inauguration Day.
By: Emily Neumann
Emily Neumann is the managing partner at Reddy & Neumann, P.C. and is responsible for the overall functioning of our firm. She consults with company Legal and Human Resources teams to provide top-notch client service and advice regarding their temporary and permanent work visa sponsorship needs among new hires, current employees, and their families.