January 14, 2021

U.S. Issues Final Rule on H-1B Selection Process Based on Wage Levels

The United States Department of Homeland Security (DHS) has published the final rule regarding changes to the H-1B visa lottery procedures. The rule modifies how the lottery is conducted by prioritizing applications by wage level for the petitioned role, with the highest prevailing wages considered first. Previously, the lottery was based on a random selection process. The rule is expected to be in place by March 9, 2021 ahead of the H-1B cap season.

Published in the Federal Register as “Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject H–1B Petitions,” the rule amends the regulations governing the process used by U.S. Citizenship and Immigration Services (USCIS) to select applications. It eliminates random selection in favor of placing the highest prevailing wage level cases first, as determined by the Labor Condition Application (LCA) details and either equal to or exceeding Occupational Employment Statistics (OES) data about prevailing wage levels for the relevant role and location.

Employers are permitted to use private wage surveys to determine the required wage for their beneficiary, however they will still be required to provide the highest OES wage level for any H-1B cap registration, so that it is ranked and selected based on the OES wage level equivalent.

The H-1B Registration Tool will also be updated to address this change and will include a section for the employer to provide the wage information in relation to the Standard Occupation Classification (SOC) code for intended employment.

The DHS has indicated that the purpose of these changes is to “incentivize employers to offer higher wages, or to petition for positions requiring higher skills and higher-skilled aliens" while discouraging  “abuse of the H-1B program to fill relatively lower-paid, lower-skilled positions.”

What’s the impact?

Although the ruling is very likely to be challenged, the Biden Administration has expressed support for the concept of the H-1B cap allocation to be based on wage levels. U.S. employers should proceed with the highest wage levels possible for the roles in question. Correct OES wage levels should be used on registrations to strengthen the application and avoid later amendments, which could put the validity of the registration into question.

For further information on the selection process for H1-B applications, please contact the Sterling Lexicon immigration team.

Leanne Cottrell

Leanne Cottrell

As Head of Immigration with Sterling Lexicon, Leanne leads a team of specialists who are responsible for ensuring the entire immigration process is smooth and stress-free for clients, assignees and their accompanying family members. She brings over ten years of experience in strategic immigration management, planning and consultation to her role, and has cultivated invaluable knowledge and experience in processing countless global migration applications. As a trusted partner, she consults with clients on everything from policy considerations and cost or efficiency improvements, to the impact of opening offices in new locations. Leanne is a frequent presenter and author on global immigration topics and trends.

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