DHS WITHDRAWS RULE THAT WOULD HAVE REPLACED H-1B CAP LOTTERY WITH SELECTION PROCESS BASED ON WAGE LEVEL

By: Navdeep Meamber

The United States Department of Homeland Security (DHS) will withdraw the proposed rule “Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject H-1B Petitions.” The rule, often referred to as the H-1B Selection Final Rule, was issued on January 8, 2021 and vacated by the US District Court for the Northern District of California. Under the policy, United States Citizenship and Immigration Services (USCIS) would have prioritized higher wage H-1B beneficiaries instead of using a randomized lottery selection process.

CURRENT POLICY AND HISTORY

The court in Chamber of Commerce of the United States of America et al. v. United States Department of Homeland Security, et al. [1] removed the H-1B Selection Final Rule on September 15, 2021. DHS will not appeal this decision, and will stop defending a separate legal challenge to the regulation. Therefore, USCIS will continue to select H-1B candidates using a randomized lottery.

The proposed rule would have awarded H-1B visas to candidates whose salary ranked the highest for their occupation and geographic area according to the Department of Labor’s Occupational Employment Statistics (OES) four-level wage structure. It was scheduled to go into effect on March 9, 2021, and then later delayed to December 31, 2021.

POSSIBLE FUTURE IMPACT

DHS’s regulatory agenda indicates the rule is still under consideration as a deprioritized long-term action. Therefore, it is possible that DHS will reintroduce the law in the future.

CONCLUSION

The Chugh, LLP immigration team will continue to monitor changes to the H-1B program and provide updates as they become available. For case-specific questions about policy changes, filing applications, or the H-1B cap lottery, contact your immigration professional.

[1] No. 4:20–cv–07331 (N.D. Cal. March 19, 2021).