By Lana Morgan
United States Citizenship and Immigration Services (USCIS) will soon announce the registration process for the H-1B visa fiscal year 2022 cap season. It is unclear yet whether the agency will implement the October 2020 Department of Homeland Security (DHS) rule that would award H-1B visas based on wage level instead of the randomized lottery system.
The Wage-Based H-1B Selection Process
In October 2020, the DHS announced that USCIS would award H-1B visas based on wage level instead of the randomized lottery system, with an effective date of March 9, 2021. The new system would award H-1B visas to foreign nationals who are paid the highest Occupational Employment Statistics (OES) prevailing wage level for their standard occupation classification (SOC) and geographic region. The rule aims to incentivize employers to sponsor H-1B workers with higher skills and higher pay.
The Biden administration announced on January 20, 2021 that it will put all pending rules on hold for evaluation for 60 days or longer. This would impact the DHS rule regarding H-1B visa selection based on prevailing wage. However, the Biden administration has not directly addressed how it will move forward with the H-1B visa selection process.
USCIS must begin the fiscal year 2022 H-1B visa registration period on March 18, 2021 at the latest. It is required to announce the new process by February 16, 2021. The agency has taken preliminary steps in recent days to insert new questions related to wage levels and SOC codes in the H-1B visa registration website and Form I-129, Petition for a Nonimmigrant Worker. However, if the new H-1B visa selection process based on wage level is delayed, this new information would not be required for fiscal year 2022.
Our team will closely monitor policy for the H-1B visa selection process for fiscal year 2022. We will provide updates as soon as they are available. For case-specific questions, please contact your trusted Chugh, LLP attorney.