Final H-1B Rule

UPDATE (February 4, 2021): The January 8th rule will not be part of the 2021–2022 H-1B lottery process. The Biden Administration is delaying the January 8th rule seeking to prioritize cap candidates in higher wage levels until December 31, 2021. The Biden Administration still has to thoroughly review it and his administration or the federal courts may still eliminate it altogether.

According to the final rule published by the US Department of Homeland Security (DHS) on January 8, 2021, USCIS intended to modify the current H-1B cap registration system by prioritizing registrations based on wage levels set by the Department of Labor (DOL). The purpose of the rule would be to prioritize H-1B registrations based on salary for the geographic area of intended employment and skills needed for the offered position instead of the way the current lottery system operates.

As of February 4th, 2021 this rule will NOT affect the H-1B 2022 registration process for the fiscal year which begins October 1, 2021. We expect the lottery to remain similar to last year’s; the rule may however affect next year’s (2022-2023) H-1B lottery season. We will update our clients accordingly in the event of changes. Keep reading to learn more about this H-1B rule that may go into effect next year, as well as how to petition.

Table of Contents

  1. Anticipated Changes with the H-1B Rule
  2. Brief History About the H-1B Program
  3. H-1B to Green Card Transition
  4. DHS’ Stance
  5. Recap – Who Will the H-1B Rule Exclude?
  6. How Our H1-B Attorneys Can Help

Proposed Changes with the Final H-1B Rule

The proposed H-1B Rule, with the title Modification of Registration Requirement for Petitioners Seeking To File Cap-Subject H-1B Petitioners, would allow USCIS to choose H1-B cap-subject applicants based on the highest wage levels.

DHS has justified this change by stating that the new method of prioritizing registrations will incentivize H-1B employers to offer higher wages or to petition for positions requiring higher skills.

This H-1B rule would eliminate the system used prior, which was a computer-generated random selection of cap-subject registrations and/or H-1B petitions in any year that the requirement for registration is suspended when USCIS gets a higher number of petitions/registrants than there are necessary to reach the limit.

Per USCIS, this new system would be for both the H-1B regular cap and the H-1B advanced-degree exemption, but it would not change the order of selection between the two as established by the H-1B registration final rule. Even in the event of a satisfactory wage survey, USCIS would use the highest corresponding Occupational Employment Statistic (OES) wage level instead.

Important Provisions of the Proposed Rule

  • If the H1-B registrations received during the initial registration period exceed the number needed to reach the H1-B numerical allocation for the Bachelor’s cap and Master’s cap, USCIS will rank and select registrations based on the highest wage level for the relevant occupational code of the offered position. Hence H1-B registrations with wage levels III and IV will have the highest chance of being selected, and Wage Level II will follow thereafter. USCIS has indicated that based on this selection process, H1-B registrations with Wage Level I will likely not be selected.
  • If the H1-B registrations received by USCIS at a particular wage level exceed the number needed to reach the H1-B numerical allocation for the Bachelor’s cap and Master’s cap, USCIS will then carry out a random pick of all registrations within the wage tier to reach the applicable cap.
  • Applicable changes to the I-129 form will also be made to obtain information regarding the wage level on the form.

Again, the Biden administration or the Federal Courts may decide to scrap this rule altogether or it could be applied to the H1-B 2023 registration process.

Brief History About the H-1B Program

The H-1B program was designed to let organizations in the United States temporarily hire foreign specialty workers to work in the country. Historically, it’s been the most popular long-term work visa in the U.S. because there were many benefits of the H-1B visa category over other work visa categories. Some of these benefits included accessibility to the initial period of stay, the ability for people all over the world to apply, and more. Unfortunately, with the changes announced by DHS, this may no longer be the most popular work visa category for foreign workers.

Education Requirements for H1-B Visa

With the proposed changes to the H-1B visa rule, the education requirements would still be the same. You must have a bachelor’s or advanced degree from an accredited university or college. The degree must also be related to the H-1B specialty occupation, and if the degree was obtained outside of the U.S., then it must be equivalent to the same available degree in the U.S. Along with the educational requirements, you need to have a valid job offer from a U.S. employer and must qualify as a specialty occupation. To be considered as such, the position has to fulfill at least one of these qualifications:

  • The position requires a minimum of a bachelor’s degree or foreign equivalent.
  • The position is so complex that it can only be carried out by a specialized professional with a bachelor’s degree or higher in the field.

H-1B to Green Card Transition

It is possible to transition from an H-1B visa to legal permanent resident status—a green card—because the H-1B visa is a dual intent work visa. If your goal is to get a green card, then you will need your H-1B employer—or other U.S. employer—to sponsor the green card for you. They’ll need to get a PERM Labor Certification for you, assuming you’re applying for an Eb-2 or EB-3 green card. After you have your PERM Labor Certification, your employer will need to file the I-140 petition with USCIS. Our lawyers can also help you with that transition if you are already with an employer willing to sponsor your green card.

How Will USCIS Rank Applications Received for Final H-1B Rule?

If the H-1B beneficiary will work in multiple locations, USCIS will rank and select the registration or petition based on the lowest corresponding OES wage level of the different locations. In the event that more registrants in the same wage level than visas available, DHS will carry out a random selection of the registrants received in the wage level indicated.

If OES wage data is not available or doesn’t exist, then USCIS may utilize the Department of Labor’s prevailing wage to decide what the proper OES wage level. If USCIS disagrees with the wage level selected by the petitioner, USCIS will issue either a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) to allow the petitioner to establish that it selected the appropriate Standard Occupational Classification code and wage level.

The Final Rule would not change the order of H-1B cap lottery selections between the regular cap and the advanced degree exemption. USCIS would first select from the regular-cap registrants or petitions using the wage level ranking and then for the advanced degree exemption.

DHS’ Stance

With this proposed rule, DHS has essentially made it possible for authorized petitioners to buy H-1B cap-subject spots by letting employers offer higher wages to get a leg up throughout the H1-B process regardless of whether the Department of Labor prevailing wage figure would suggest a lower wage level.

DHS states that USCIS will determine whether a petitioner attempted to circumvent the rule based on a totality of the record. DHS declined to provide a list of factors USCIS will consider in such adjudications. The burden of proof will be left to the petitioner to show that the new or amended petition is not an attempt to unfairly increase the odds of selection.

Recap – Who Will the Final H-1B Rule Exclude?

Instead of the lottery, the final H1-B rule would have USCIS receive registrations prior to the beginning of the fiscal year—before April 1. In the likely event that more applications are received than the limit permits—65,000 petitions for the annual limit and 20,000 for individuals with an advanced degree from a U.S. university—then the agency would give the petitions starting with the highest to lowest salaries.

How Our H1-B Attorneys Can Help

With these possible changes to the H1-B Lottery Rule, it’s highly advised to seek the opinion of a qualified lawyer to look over your case. Our team has a high track record of success in even the most complex H-1B cases. We offer free consultations to certain qualified H-1B clients and also flat fees on certain H1-B visa applications (not including RFE responses and USCIS filing fees associated with your case). Contact us to learn how to take advantage of this new H-1B ruling and start processing your case.