New Regulation Creates Wage-Based Selection Process For H-1B Lottery

Tonkon Torp LLP
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Tonkon Torp LLP

On January 8, 2021, the Department of Homeland Security published a new regulation that will change the annual H-1B cap selection process from random selection to wage-based selection. In short, USCIS will rank and select H-1B cap registrations that offer wages that meet or exceed the Department of Labor’s highest prevailing wage Level IV, and proceed with selections in descending order to Level I.
 
While the final rule is scheduled to go into effect March 9, 2021, the Biden administration has announced that any proposed rule that has not taken effect before January 20, 2021 (Inauguration Day), will be delayed an additional 60 days. Based on this announcement, we do not expect the new regulation to impact the H-1B cap registration process that will begin in early March 2021.
 
We anticipate litigation challenging the regulation or other action in the near future.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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