News & Insights

DHS is publishing an H-1B lottery final rule that gives preference to individuals with higher wages

The Department of Homeland Security (DHS) is releasing a final rule changing the next lottery for H-1B specialty occupation visas from the current random selection process to one based on an individual’s wages. The final rule is to be published on 01/08/2021 and will be effective 60 days from the date of publication.

Per USCIS (DHS agency in charge of immigration adjudications), the new selection system prioritizing registrations based on wage level “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 rule is raising the required wages and standards to unreasonable levels. Doing so may satisfy the short-term desire of incentivizing employers to stick to the domestic applicant pool, but long term, the employers are not getting the best and the brightest.

The H-1B visa is a program that helps employers of all sizes find and hire the best and most qualified workers, anywhere in the world. The emphasis on higher wages as criteria for selection in the H-1B lottery means that entry level jobs will not be viable any longer, which is likely to have a negative effect on foreign students staying and working in the U.S after graduation. That really weakens the entire H-1B program because there are many specialty occupations where you can have a graduate being a fully qualified professional even in an entry level position and paid an entry level wage.

It is very likely that litigation will follow the publication of this rule. The rule is going to be very painful for U.S. employers in many different industries, and especially during a pandemic. We need as many brilliant, smart talents at all levels of expertise as we can get. Because the rule may adversely affect small businesses and open the door to discrimination it will certainly be challenged in federal court.

We are very confident that with the imminent change in administration, smarter moves will take place to improve the H-1B program. With the new administration, we believe that the United States will remain a great nation that welcomes remarkable talents from all over the world, giving them the opportunity to keep us at the forefront in several modern and developing fields.

If you have questions about the H-1B program and the upcoming cap season, reach out to PLG immigration attorneys at mmutombo@patellegal.com and cprescott@patellegal.com.

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