The US Department of Homeland Security has published a final rule in the Federal Register to make changes to the H-1B visa process. A move that will affect how the visa lottery is done in March this year. The rule replaces the random H-1B selection process with a wage-based selection process. However, legal counselors said that President-Elect Joe Biden could cancel or postpone the execution of the rule.
According to the new rule, applications would be selected 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 rule would be effective within 60 days of publication.
H-1B Selection Process
As expected Trump Administration is trying to cram is as many midnight guidelines as possible and this is one of them. The good news is that this rule may never come around as the Biden Administration will have the opportunity to postpone implementation for an extra 60 days. Which would be beyond the start of the current H-1B Cap season. It is normal practice for all incoming administrations to pause or delay newly released regulations. From the prior administration, said Nandini Nair, partner at law firm Greenspoon Marder.
This rule would increase the uncertainty around the H-1B lottery, which so far has been based on random selection. Now, prioritizing applications by compensation offered would effectively destroy the H-1B system, said, immigration lawyers.
This move is required to be prosecuted in the coming weeks. This will get overturned in court because it is against the statute. Also, against the facts, since it isn’t helping anyone, and hurting US business, and there is no notification given to individuals. Said Rajiv S Khanna, managing director at immigration.com.
The DHS said that prioritizing registrations based on wage level within each cap will incentivize H-1B employers. To offer higher wages or to petition for positions requiring higher skills and higher-skilled aliens that are commensurate with higher wage levels. To increase the likelihood of selection and eligibility to file an H-1B cap-subject petition. This will make it almost certain that they to get the best and the brightest workers. And disincentivize abuse of the H-1B program to fill lower-paid lower-skilled positions.