Updated: Jan 17, 2021
The Trump Administration on Oct 28, 2020 proposed a new rule that would end the H-1B visa lottery process as we know it. This rule, if it were to go into effect, would allow the U.S. Citizenship and Immigration Services (USCIS) to grant visas based on the highest salary levels.
The proposed regulation, which attorneys and prominent critics say may violate the statute, will most likely be challenged in court. It is a part of the Trump Administration’s plan to protect American jobs during the pandemic. Not to mention that this rule would keep younger foreign workers and international students from getting jobs in the U.S.
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:
No petitions offering to pay Level 1 wages would be selected
75% petitions offering to pay Level 2 wages would be selected
100% petitions offering to pay Level 3 & 4 wages would be selected
When does the rule go into effect?
The Department of Homeland Security (DHS) plans to put this rule into effect in time for the 2021 H-1B lottery (March 2021). For that to happen, the agency has published the proposed change in the Federal Register on November 02, 2020 for public comments on the rule. The public can comment on the rule on or before December 02, 202 and on associated forms until January 04, 2020.
Can I take any step right now?
You can submit comments on the rule until November 02, 202 for USCIS or DHS to consider. There are no other steps that you need to take until you and your employee are ready to start filing the H-1B petition starting April 01, 2021. We are tracking the development of this rule closely and will update this page with latest 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.