USCIS to Delay Implementation of Wage-Weighted H-1B Quota Selection Rule Until December 31, 2021

Mintz - Immigration Viewpoints

Mintz - Immigration Viewpoints

U.S. Citizenship and Immigration Services (USCIS) has made the decision to delay implementation of the rule introducing wage-weighted priority into the H-1B lottery selection system. USCIS announced that it will delay the effective date of the final rule titled “Modification of Registration Requirement for Petitioners Seeking To File Cap-Subject H-1B Petitions.” This rule was published on January 8, 2021 and was scheduled to go into effect on March 9, 2021. The new effective date is December 31, 2021, and it will not impact H-1B quota registration for FY2022. USCIS will publish an announcement of this delay in the Federal Register on Monday, February 8, 2021.

As discussed in our prior article, the rule will change the H-1B lottery process to replace the random lottery with a weighted selection system favoring H-1B registrations in which employers have agreed to pay the highest wage level in the Department of Labor’s (DOL) four-tiered wage system. To be implemented, USCIS’s online H-1B quota selection system will have to be significantly revised to take into account the employer’s offered wage, the occupational classification, and the wage level in the DOL’s system. None of this data was needed in last year’s H-1B registration system — the first year an online quota selection system was used. With online registration expected to start sometime in March, USCIS’s announcement delaying this rule implementation confirms what immigration practitioners have been concerned about all along: “USCIS will not have adequate time to complete system development, thoroughly test the modifications, train staff, and conduct public outreach needed to ensure an effective and orderly implementation of the H-1B Selection Final Rule by the time the initial registration period will be open for the upcoming fiscal year (FY) 2022 H-1B cap season.”

This is welcome news for all stakeholders preparing for registration submissions next month. H-1B registrations for FY2022 will be the same as last year, thus avoiding a last-minute scramble to secure key data and become familiar with system changes. The delay announcement also confirms that “[d]uring the delay, while USCIS works through the issues associated with implementation, DHS leadership will also evaluate the January 8th rule and its associated policies, as is typical of agencies at the beginning of a new Administration.” This delay announcement does not provide an official date when the H-1B registration system will be opened. Registration is expected to be opened in March, so stay tuned for an official announcement soon.

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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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