Final H-1B Rule

The Department of Homeland Security (DHS) published a final H-1B Rule on January 8, 2021, to end the H-1B lottery as a final rule. Essentially, this rule relegates the decision to the Biden administration as well as modifies the H-1B cap selection process to prioritize and choose H-1B cap-subject applicants according to the highest wage levels. The purpose of the new rule is to give priority selection to H1-B registrations based on salary for the geographic area of intended employment and skills needed for the offered position instead of the lottery process that is currently in place. Learn what other changes are in the store for the final H-1B Rule as well as how to petition.

Table of Contents

  1. Changes with the Final 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 Final H-1B Rule Exclude?
  6. How Our H1-B Attorneys Can Help

Changes with the Final H-1B Rule

The Final H-1B Rule, with the title Modification of Registration Requirement for Petitioners Seeking To File Cap-Subject H-1B Petitioners, allows USCIS to choose H1-B cap-subject applicants based on the highest wage levels. This final rule will take effect on March 9, 2021, and without legal challenge will be in effect for the FY2022 H-1B cap lottery.

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.

The final H-1B rule eliminates 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 will be for both the H-1B regular cap and the H-1B advanced-degree exemption, but it will not change the order of selection between the two as established by the H-1B registration final rule. Even in the event that a satisfactory wage survey, USCIS is now going to use the highest corresponding Occupational Employment Statistic (OES) wage level instead.

Important Provisions of the 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.

At this time, this rule is supposed to be effective as of March 9, 2021. However, the Biden administration may delay the implementation of this rule either until March 21, 2021, or May 8, 2021, to give its legal team time to review it in further detail. The length of the delay will determine if the rule will be applied to the H1-B 2022 registration process. Further, this rule could also be challenged in federal courts, and an injunction issued as a result thereof could further delay its implementation.

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 changes to the H-1B visa rule, the education requirements are still 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 will not change the order of H-1B cap lottery selections between the regular cap and the advanced degree exemption. USCIS will first select from the regular-cap registrants or petitions using the wage level ranking and then for the advanced degree exemption.

DHS’ Stance

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 will 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 the recent 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.