• Emily McIntosh

2021 (FY2022) H-1B Lottery Selection will be based on Higher Wages

Updated: Feb 5



UPDATED: Feb 04, 2021


On February 04, 2021, the Department of Homeland Security announced that it is delaying the implementation of this rule from March 09, 2021 to Dec 31, 2021.



The Department of Homeland Security (DHS) on January 08, 2021 published the new rule that was proposed on October 28, 2020.


The new regulation, which attorneys and prominent critics say may violate the statute, will most likely be challenged in court. This rule would keep younger foreign workers and international students from getting jobs in the U.S. Further, the Biden Administration may place the rule on hold since they have announced to pause implementation of all rules passed in the last 30 days of outgoing administration on day 1.


If, however, this the rule is ultimately implemented for the FY 2022 lottery season, USCIS is expected to publish instructions for companies on how it will implement the rule.



What does the new rule do?

The new proposed rule allows USCIS to:

  • Eliminate the H-1B lottery

  • Accept petitions until September, 30 instead of April 01

  • Rank and select received petitions based on highest Occupational Employment Statistics (OES) wage for a particular job, level of experience and in a given Metropolitan Statistical Area (MSA)

  • Award visas to the petitions with the highest to lowest salary





Who does this rule impact?

This rule, if passed, would apply to registrations submitted to file H-1B cap-subject petitions in the year 2021 (for H-1B to start in FY 2022). This means that all the employees currently on OPT, CPT or outside the U.S. would be subject to this rule, if it were to go into effect.


USCIS predicts that:

  • 100% petitions offering to pay Level 3 & 4 wages would be selected

  • 75% petitions offering to pay Level 2 wages would be selected

  • No petitions offering to pay Level 1 wages would be selected


WayLit is closely monitoring the development on this new rule and will update this page with more information as it becomes available.



Content in this publication is not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult a WayLit-affiliated attorney or another qualified professional.


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