Planning to register for the H-1B cap season this spring but will you have a chance of being selected based on this new DHS Rule?

As many of you know, the most common H-1B professional worker visa category is subject to an annual quota/ cap per fiscal year (with some exceptions) and historically, the demand for initial H-1B numbers significantly exceeds the numbers available.  So last year, employers and foreign nationals welcomed a new H-1B registration rule, whereby employers seeking to file H-1B cap-subject petitions had to first register electronically with the U.S. Citizenship and Immigration Service (USCIS) during a designated registration period.  And at the end of the initial registration period, USCIS received more registrations than needed to reach the H-1B cap, so it randomly selected, through a computer generated lottery a sufficient number of registrations who were then notified to submit their H-1B cap petition filings to USCIS.

This year, the H-1B cap registration process may be different again, based on a new Department of Homeland Security (DHS) regulation , to be published on January 8, 2021.   The registration process will continue but this new regulation will replace the random, computerized H-1B lottery with a selection process of the H-1B registrants based on the Department of Labor’s wage level system.  This means that the highest paid employees will be selected first, so entry level positions with wage levels 1 and 2 will have minimal to no chance of being selected for the H-1B cap this year.  The rule is scheduled to take effect 60 days from its publication, which means it will apply to the FY2022 H-1B cap season this spring, unless it is stopped by the new Administration.

In preparation for the rule, DHS is revising its online H-1B cap registration form to request information on the OES wage level associated with the offered wage and position.  This would allow USCIS to later compare the OES wage information provided in the H-1B registration to any H-1B petition filed in connection with that registration to ensure that the employer complies with the wage level it designated.  While we do not have a crystal ball, it is expected that President Elect Biden may pause and re-review the rule.  We will provide an update as soon as we know if the new rule would be in effect for this FY2022 H-1B cap filing season or not.