H-1B Lottery Changes Vacated By U.S. District Court

Updated September 16, 2021, The United States District Court for the Northern District of California has vacated the new modified H-1B lottery rule, which was set to go into effect next year. The new process significantly altered the current random H-1B lottery system, and new H-1B visas were distributed based on the wage level of the salary offer. The rule reverts to the random H-1B lottery.

Updated January 8, 2021, The U.S. Citizenship and Immigration Services (USCIS) in the Trump Administration published a final rule in the Federal Register to replace it with a system where H-1B visas would be rolled out by wage level. The rule was scheduled to go into effect in 60 days. DHS rejected all comments seeking changes from the proposed rule.

USCIS announced “Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject H-1B” to publish notice in the Federal Register on Monday delaying the change to the H-1B lottery until December 30, 2021.

The Department is delaying the rule’s effective date until December 31, 2021, because USCIS will not have adequate time to complete system development, thoroughly test the modifications, train staff, and conduct public outreach needed to ensure an effective and orderly implementation of the H1B Selection Final Rule by the time the initial registration period will be open for the upcoming fiscal year (FY) 2022 H-1B cap season.

DHS in the Trump Administration proposed to eliminate the H-1B lottery in October 2020 to replace it with a system where H-1B visas would be rolled out by wage level. The Current H1B process of random selection to pick highly skilled candidates makes it harder for businesses to plan their hiring. It does not serve the ends of the H-1B program or Congressional intent.

Though the proposal to eliminate the H-1B lottery seems to be a welcome move, however replacing with wage level is a concerning part.

On a another Note, USCIS withdraws its 2017 “computer programmer” policy memo in light of litigation that overturned denial of an H1B extension unlawfully. USCIS officers should not apply PM-602-0142 to any pending or new requests for H-1B classification, including motions on and appeals of revocations and denials of H-1B classification.

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What this means? As per published final rule does not impact the regular and the master’s cap. It alters the randomly selecting registrations, the final rule would have the USCIS rank registration based on the highest occupational employment statistics (OES) wage level that the proffered wage would equal or exceed for the relevant SOC code and in the area of intended employment.

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The USCIS could determine what the OES wage level for the position. Positions that meet the wage level IV requirement would get priority. Based on the data, Level III and Level IV has more chances to get picked before Level I & Level II to get their chances.

At this point, there is no impact in the current 2022 H-1B cap season and also expected to be amended by the New Biden Administration.

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