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DHS Withdraws Regulation to Replace H-1B Cap Lottery with Wage Level Selection Process

2 min read
O1A Petitions

H-1B Visa Selection Criteria: The United States has withdrawn a rule that would have changed how the H-1B visa process is administered, said the US Citizenship and Immigration Services. A final rule to this effect will be issued in the Federal Register on 22nd December 2021.

The decision by the Department of Homeland Security comes after the US District Court for the Northern District of California vacated the rule in September.

Moreover, in January, the US had proposed to change how are chosen, getting away from a lottery-based system to a selection based on ranking and wage levels.

H-1B Visa Selection Criteria

A few industry bodies and organizations had opposed the proposal. The US Chamber of Commerce and others had also filed claims against the proposed rule, which resulted in the court verdict.

The rule – Modification of Registration Requirement for Petitioners Seeking To File Cap-Subject H-1B Petitions. It was among the last few to be brought in by the government of previous US President Donald Trump.

It was supposed to take effect on 9th March 2021 and would have impacted the H-1B process for the financial year 2022, before it was postponed. The Department of Homeland Security then delayed the effective date of the regulation to 31st December 2021. In response to a Biden government regulatory freeze.

Background

In September 2021, a California federal district court invalidated the H-1B wage allocation guideline on the grounds that then-Acting DHS Secretary Chad Wolf was not lawfully serving in his job at the time the agency proclaimed the cap selection regulation. The upcoming withdrawal of the rule in the Federal Register implements this court order. The case is Chamber of Commerce of the United States of America et al. v. Department of Homeland Security, et al., Case No. 4:20-cv-07331 (N.D. Cal. March 19, 2021).

[DHS to Supplement H-2B Cap with Additional Visas]

The H-1B wage selection regulation has also been challenged in a different federal district court case, Humane Society of America v. Mayorkas, Case No. 1:21-cv-01349 (D.D.C., May 17, 2021). In recent court filings, however, DHS has shown that it plans to come to a settlement agreement. In that case, putting an end to the litigation.

Conclusion

The H-1B cap lottery is expected to remain in place for the foreseeable future. However, the Fall 2021 DHS regulatory agenda released in recent weeks includes the rule on its “long-term action” list. This implies the rule has been deprioritized, yet can’t be ruled out in the long term. On its main regulatory plan, DHS includes rules that might affect the H-1B program in the shorter term. Also, including changes to redefine the employer-employee relationships and set up guidelines for site visits, among others. Rules on the main agenda could be issued as proposals within the next several months.

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