Sweeping Change to the H-1B Visa Program

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The Department of Homeland Security (DHS) has published its controversial regulation to end the H-1B visa lottery as a “final rule”, leaving it to the Biden administration or a lawsuit to stop a significant change in U.S. immigration policy. If you need assistance with the immigration process, consider hiring an immigration lawyer to guide you through its complexities.

The regulation would authorize U.S. Citizenship and Immigration Services (USCIS) to end the H-1B lottery and instead grant petitions based on registrations starting with the highest salary level and working down.

In place of the H-1B lottery, USCIS would receive registrations before the start of a fiscal year (likely before April 1). If more are received than the H-1B limit allows, the agency would award the petitions from highest to lowest salary. This process would be used for the 65,000 petitions under the annual limit and 20,000 petitions for individuals with an advanced degree from a U.S. university.

According to the regulation, “USCIS will rank and select the petitions received based on the highest Occupational Employment Statistics (OES) wage level that the proffered wage equals or exceeds for the relevant Standard Occupational Classification (SOC) code in the area of intended employment, beginning with OES wage level IV and proceeding in descending order with OES wage levels III, II, and I,”.

In the proposed rule, DHS predicted no individuals paid Level 1 wages would be selected for H-1B petitions, and about 25% of individuals who would receive Level 2 wages also would not be chosen. DHS asserted everyone at Level 3 and Level 4 would be selected but concedes that a lot more individuals at Level 2 wages may be shut out of petitions if there are more registrations than in the past for H-1B visa holders at Level 3 and Level 4 wages.

The rule, published January 8, 2021, goes into effect in 60 days.

There are conflicting views on what the new Biden administration can do to change the rule. Some argue that he can simply suspend the rule, while others say that the 60-day delay of the rule only buys time to revoke the rule, which would have to be done by notice and comment or via a court decision striking it down. Immigration can already be an overwhelming process to comprehend. Hiring an experienced immigration lawyer will assist in ensuring your questions and concerns about this process are addressed.

The Final Rule could be in legal jeopardy. The Preamble to the Rule admits that ‘prioritization of registration selection on factors other than degree level, such as salary, would require statutory changes’.

The current statute mandates visas to be issued in the order in which they are received. Prioritizing those applications based on wages is arguably not a fair interpretation of the statute.

Without question, the rule as it exists will severely impact small businesses, startup companies, public schools, younger information technology professionals, and health professionals working in rural areas.

We invite you to continue to monitor our website for updates on this most critical business issue.

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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