The US Citizenship and Immigration Services Issues Proposed H-1B Lottery Selection Rule

The US Citizenship and Immigration Services (USCIS) published a notice of proposed rulemaking on 2 November that would prioritize the selection of H-1B registrations based on the highest prevailing wage level instead of the current lottery selection process.

On 2 November, the USCIS published in the Federal Register, a notice of proposed rulemaking that would change how the USCIS selects H-1B registrations for those H-1B filings subject to the annual cap allotment of 85,000 visas. Under the proposed system, USCIS would first select those registrations that have the highest prevailing wage level based on the Occupational Employment Statistics (OES). Currently, the USCIS uses a random selection process in choosing annual H-1B registrations in the 20,000 advanced degree cap and the 65,000 bachelor’s degree cap.

The USCIS filed the proposed rule, Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject H-1B Petitions (Document # 2020-24259), with the Federal Register on 29 October with the publication date of 2 November. The proposed rule has a 30-day comment period with comments due by 1 December.

The move by the USCIS coincides with the issuance in early October by the Department of Labor (DOL) of an interim final rule that increases the prevailing wage for H-1B and green card visa registrations. The DOL wage rule is now in effect and raises on average the prevailing wage that employers must pay to foreign workers in the U.S. by about 30% of previous wage levels. The Department of Homeland Security (DHS) also issued in early October an interim final rule that would narrow the definition of occupations for H-1B use. That rule would take effect in mid-December. Worldwide ERC® is working on relevant Federal Register comments on these rules to submit to the agencies and will update Worldwide ERC® members when those comments are sent to the US government.

Additionally, several lawsuits have been filed against the DOL and DHS rules with Worldwide ERC® signing on to an amicus brief in support of the motion for a preliminary injunction against the two rules.

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How This Impacts Mobility

The USCIS proposed rule and the DOL and DHS interim final rules are part of an effort by the Administration to reduce access to H-1B visa talent by increasing the cost to access this talent and narrowing the occupations scope of these foreign national workers to fill open positions in the U.S. The effort could therefore further reduce the relocation of employees to the U.S. during a time when relocations have been already reduced due to restrictions to help contain the spread of COVID-19. Worldwide ERC® will provide updates to this matter on our Federal Register comments to be filed and should there be any changes. If any member has questions about this update please reach out to Vice President, Member Engagement and Public Policy Rebecca Peters,

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