New H-1b Visa Rule Calls for Lottery Selection Based on Wage Level

UPDATE: The Biden administration has put a 60 day hold or “freeze” on implementation of this new rule. Therefore it will not apply in this year’s lottery selection process.

Last Friday, January 8, 2021, USCIS published a final regulatory rule which changes the way that H-1b visas will be evaluated in the H-1b visa cap season lottery.

What is the new rule?

Under the existing rule, H-1b visa lottery winners are chosen based on a random selection process. The new rule calls for lottery selection based on the wage level used in an H-1b visa petition. This means that H-1b visa numbers will be allocated according to salary levels, giving priority to those earning the highest salaries in their respective occupations and geographic areas of employment.

Will the new rule affect this year's H-1b cap season?

As of now, that is unclear. The rule is scheduled to go into effect on March 9, 2021. Incoming President Biden has the authority to put a freeze on all unimplemented rules that exist at the time he takes office, including this one. The freeze could be up to 60 days, which means this rule would not apply to this H-1b cap season. However, Biden has not committed to freezing this rule, and he has expressed support for allotment of H-1b based on wage levels. Therefore we will need to wait and see.

Need assistance with an H-1b visa cap season petition? Contact us today at theteam@huwelaw.com or 415-849-1199.