USCIS today published a draft of a final rule that would radically change the H-1B lottery system. The new rule was just announced this morning (Jan 7, 2021) and is scheduled to take effect 60 days after final publication. Final publication could be tomorrow. There is a possibility that a Biden administration will delay implementation. However, President-elect Biden has shown support for wage-based H-1Bs, so he may agree with this change.
The registration period for H-1Bs has not been announced for 2021. In 2020, registrations could be made from March 1 - March 20. If the same period applies this year, and the new rule is effective 60 days after publication, it would take effect during the registration period. If the new rule is in place, we need to list salary levels on the registration and consider the possibility of using a higher salary to increase the H-1B chances. This may mean waiting until the first or second week of March to file registrations. The date of applying does not effect the foreign national's chance of being selected, once the registration is done before the deadline.
Under the proposed system, there will still be a lottery for new H-1B cases, but the lottery won't be as random as before. USCIS plans to prioritize applications based on salaries. Those positions that offer a Level 4 salary (based on Department of Labor OES levels) would be given priority over applications offering a Level 3 or lower salary, even if the lower salary meets the prevailing wage for the position. After the applications are sorted by salary level, USCIS will select 65,000 under the regular H-1B cap, and then select the 20,000 advanced degree cap. Numbers will first be drawn from the Level 4 salary pile, then Level 3, etc.
The new system will favor large corporations that can afford higher salaries. to the detriment of small companies. These small companies might be eliminated from any chance at the lottery even if the salary offered is higher than normal in the region for the position. For example, these are the salaries for civil engineers in the DFW area. A small engineering firm would be generous in offering a salary of $80,000 to an entry-level hire. However, this is just a Level 2 salary, so might have no chance in the H-1B lottery against a tidal wave of Level 3 and 4 salaries.
We are still learning about the change and expected process. Please stay tuned for more information as it emerges. Contact us for more information.
Elaine Martin has been practising US and global immigration law since 1997. She is an immigrant herself (from Ireland), so has a special understanding of the legal and emotional challenges involved in relocating to a new country.