Major Changes to H-1B Visa Lottery Process To Take Effect Before 2022 Filing Season

USCIS Rule Prioritizes Visas For Higher-Wage Positions

Less than a year ago, we wrote about changes to the H-1B selection process in an article about the altered H-1B lottery process for fiscal year 2021. Another drastic change is about to be implemented, and employers seeking to secure H-1B visas may find themselves reconsidering their budgets and the wages they are prepared to pay beneficiary employees.

On January 8, 2021, United States Citizenship and Immigration Services (“USCIS”) published a Final Rule with additional changes intended to prioritize the issuance of H-1B visas to higher-wage individuals. The rule, which will go into effect on March 9, 2021, will dramatically change the H-1B lottery process for the upcoming Fiscal Year 2022 H-B filing system. Under the current process, employers wishing to hire H-1B employees subject to a limit or “cap” are randomly selected from all electronic registrations. Those employers whose registrations are selected may then file petitions on behalf of their foreign workers.

The New Regulation (8 CFR Part 214) Will Permit USCIS to:

rank and select the registrations received generally on the basis of the highest OES wage level that the proffered wage equals or exceeds for the relevant SOC code in the area of intended employment, beginning with OES wage level IV and proceeding in descending order with OES wage levels III, II, and I.

In other words, employers seeking to fill higher-skilled and higher-wage positions will be given a better chance of having their employer-sponsored visas approved. USCIS will first rank registrations for regular H-1B cap selection and then for the advanced degree selection. This is consistent with the Department of Homeland Security’s stated purpose “to “incentivize H-1B employers to offer higher wages, or to petition for positions requiring higher skills . .  . to increase the likelihood of selection and eligibility to file an H-1B cap-subject petition.”

Employers Urged to Adjust and Plan Accordingly for 2022 Filing Season

The H-1B cap filing season begins in March every year for the following fiscal year. With an effective date of March 3, 2021, the Final Rule will go into effect at about the same time the FY 2022 filing season begins. Nonetheless, DHS has stated that the new rule should go into effect as soon as possible, and has discounted concerns that employers may not have time to make any adjustments in planning necessary prior to the beginning of the registration period:

DHS does not believe that petitioners will face significant adverse impacts with the implementation of this change in the selection process and believes that employers have sufficient time to make any decisions they believe are needed as a result of this rule, such as increasing proffered wages to increase the odds of selection. Further, DHS believes that there is sufficient time to allow for testing and modification and that delaying implementation at this time is not necessary.

Whether or not DHS is correct in its assumptions that employers will not experience any negative impact, H-1B employers planning to register for the upcoming FY 2022 lottery should be aware that the changes will be implemented for this coming season, and should plan accordingly.

Blair T. Preiser advises companies and individuals about the best visa strategies for their specific needs and counsels them on a wide range of business immigration matters. Contact Blair at bpreiser@lynchlaw-group.com or (724) 776-8000 for more information about the H1-B lottery process or other immigration matters.

 

 

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