News & Insights

Changes To The H-1B Lottery Process For FY2021

The Trump administration has now issued a third rule, which radically alters the H-1B program.

The first rule was a DOL rule, which significantly increased the wage levels.  See our earlier articles which discuss these changes:

https://www.patellegal.com/dols-interim-final-rule-implements-higher-prevailing-wage-rates/

https://www.patellegal.com/it-companies-file-suit-against-dol-over-its-new-wage-rule/

The second rule was a DHS rule which changes the definition of H-1B specialty occupation, employer/employee relationship and which seeks to restrict H-1B approvals for IT staffing companies to 1 year.  This rule is due to take effect on December 7, 2020. Further details about this rule can be found in the article below:

https://www.patellegal.com/dhs-has-published-new-h-1b-regulations/

The third rule seeks to change the current H-1B lottery system.  Currently, the H-1B lottery is based on a purely random selection of petitions and has been this way since the program was first initiated.  However, under the new rule selections will now be made based on how much the H-1B candidate is being offered in terms of salary.  The rule envisions that those with the best chance of being selected will have to be paid a level 3 or level 4 wage.  However, historically the majority of H-1B lottery applications were filed with either a level 1 or level 2 wage.  Most first-time applicants are just finishing school so it makes sense that they would be offered an entry-level salary. However, in order to stand a chance of being selected a candidate would now need to be paid either a level 3 or a level 4 wage, which are based on the 78th and 95th percentiles, as a result of the DOL wage rule.  This means a candidate straight out of college with no experience would need to be paid at the top end of the salary scale, in order to stand any chance of being selected.  For example, a Software Developer working in Dallas would need to be paid at least $149,198 a year (level 3) and possibly as much as $171,184 a year (level 4).

This rule is an obvious attempt by the Trump administration to make it almost impossible to hire a new H-1B worker and instead hire a U.S Citizen. The combination of all three rules will essentially completely eliminate the H-1B program.

Whether this new lottery rule will become law remains to be seen.  There are already several lawsuits that have been filed against the DOL wage rule and DHS specialty occupation rule and it is therefore anticipated that more lawsuits will follow.  Also, with a new President on the horizon, it is also possible this rule may be rescinded prior to next year’s lottery.

If you have any immigration-related questions, please do not hesitate to contact one of our Immigration Attorneys.  Chris Prescott, PLG Partner can be contacted at cprescott@patellegal.comand Attorney Monique Mutombo can be contacted at mmutombo@patellegal.com.

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