What’s Happening
The Department of Homeland Security (DHS) has provided an advanced copy of a notice of proposed rulemaking (“NPRM”) to amend the H-1B visa selection process, implementing a weighted selection system which aims to favor higher-skilled (and higher-paid) applicants.
The proposed rule is expected to be formally published in the Federal Register on September 24, 2025, followed by a 30 day period of public comment. It is expected that it will take several months following the end of the notice and comment period for DHS to review public input and publish the final rule along with its effective date (expected to be 30 to 60 days from the date of publication). In addition, updates would need to be made to the current online H-1B registration portal to reflect the new data that must be gathered as well as the weighted registrations. As such, it is not yet known whether the new system could be in place for the upcoming H-1B cap season (Fiscal Year (FY) 2027).
Read More2/8/2021 UPDATE: USCIS published a final rule delaying until December 31, 2021, the effective date of its final rule creating a wage-based selection process for H-1B petitions, which was originally set to become effective March 9, 2021.
Read More1/7/2021 UPDATE: On January 8, 2021 the administration will publish the final version of this rule in the Federal Register and it will take effect 60 days from publication. It is possible that the legality of the rule could be challenged in Federal Court and an injunction could be put in place preventing the rule from taking force while its legality is litigated. Similarly, the rule could also be placed on hold by the incoming Biden administration, delaying or preventing its implementation.
D&S will continue to monitor both the Biden Administration’s actions with respect to this rule as well as any lawsuits filed challenging the rule and will provide updates as they become available.
Read MoreRESTRUCTURING THE H-1B LOTTERY TO A WAGE-BASIS
On October 28, 2020 the Trump Administration proposed a significant change to the process of filing cap subject petitions for H-1B nonimmigrant classification. The proposal would replace the current random selection process by which USCIS selects H-1B registrations for filing of H-1B cap-subject petitions with a system that selects registrations based on the highest Occupational Employment Statistics (OES) prevailing wage level that the proffered wage equals or exceeds for the relevant Standard Occupational Classification (SOC) code and area(s) of intended employment. The proposed rule, the full text of which is available here, was published in the Federal Register on November 2, 2020 and comments on the rule must be submitted on or before December 2, 2020.
Please note that this rule will NOT take effect until a Final Rule is published and made effective.
Read MoreThe Department of Homeland Security (DHS) released an advanced copy of the Final Rule titled “Registration Requirement for Petitioners Seeking To File H-1B Petitions on Behalf of Cap Subject Aliens” that changes the order in which U.S. Citizenship and Immigration Services (USCIS) selects H-1B petitions under the H-1B regular cap and the advanced degree exemption, and implements an electronic registration process for H-1B cap petitions. The rule will go into effect on April 1, 2019. However, USCIS stated that the registration requirement will be suspended for the fiscal year 2020 cap season to enable the Service to ensure full functionality of the system.
Read MoreWHAT’S HAPPENING
Today, the United States Citizenship and Immigration Service (USCIS) published a Notice of Proposed Rulemaking (NPRM) titled “Registration Requirement for Petitioners Seeking To File H-1B Petitions on Behalf of Cap-Subject Aliens” that will implement an electronic pre-registration process for H-1B cap petitions wherein a full H-1B petition would be submitted only after acceptance in the pre-registration lottery. The change stems from directives in the April 2017 “Buy American, Hire American” executive order, which call for reforms to the H-1B visa program to ensure that H-1Bs go to the “most-skilled” and “highest-paid” foreign workers. The rule is aims streamline the H-1B lottery process and increase the probability of selection for H-1B beneficiaries who possess a U.S. master’s or higher degree.
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