H-1B Lottery Will Continue to be Based on Random Selection
2 min read
The former Trump government proposed a rule that would change the system how H-1B visa candidates were chosen in the lottery system: under this rule that was proposed in 2020, the cases would be selected based on wage level (the higher the wage, the greater your chance of selection would be).
H-1B Lottery system based on random selection (the current system)
There are a limited number of H-1B petitions that USCIS can adjudicate each year (65,000 Regular Cap petitions and extra 20,000 U.S. Advanced Degree Petitions). Every year, more H-1B registrations than these congressionally mandated amounts are submitted (for instance, last year more than 275,000 H-1B registrations were submitted), and hence, the government needs to run an H-1B lottery and select 65,000 Regular Cap Petitions and 20,000 U.S. Advanced Degree Petitions. This is called an H-1B lottery.
At present, the H1b employers have to file what is called an H-1B registration. This is usually filed in March of every year. All things considered, registrations are received, USCIS will run a lottery and randomly select 65,000 candidates under the regular cap and 20,000 candidates under the Master’s cap. Wage is not a factor the lottery system considers and the selection is totally random.
The Proposed System
In 2020, the Department of Homeland Security proposed a change to the H1b process. The registrations that would have the highest prevailing wage would be chosen first (there are 4 wage levels the H1b employer can pay the employee and the highest wage is Level 4). Under this proposed rule, the employees that were offered wage 4 would have the highest chance to be selected. Also, the candidates with wage level 1 would have the lowest chance. The rule was widely criticized as it would be almost difficult for especially recent graduates. To ever be selected in this lottery, as ongoing graduates are never immediately after school offered wage level 4.
[L-2 spouses in the US may no longer need to apply for work authorization]
The Court Decision
On 15th September 2021, US District Judge Jeffrey White ruled that this proposed rule has to be set aside. As the secretary who proclaimed this role was not serving as acting secretary when the rule was promulgated. Because this current secretary, Mayorkas has not approved this rule, the judge concluded that the rule must be set aside.
This is great news for all H-1B visa candidates and particularly all recent graduates (including graduates from US universities) and all other candidates. Whose chance to be chosen under the new system because of lower wages would be extremely low.
