New USCIS Final Rule Prioritizes Wages for H-1B Selection
On January 8, U.S. Citizenship and Immigration Services (“USCIS”) announced a final rule that would replace the current random selection process by which USCIS selects H-1B registrations for the H-1B Cap-subject petitions with a system that prioritizes selection by selecting those with the highest wage first. Under the new selection scheme, for both the H-1B regular cap and the H-1B advanced degree exemption, among the changes, USCIS would:
- Rank and select registrations received on the basis of the highest OES wage level that the proffered wage equals or exceeds for the relevant SOC code in the area if intended employment, beginning with OES wage level IV and proceeding in descending order with OES wage levels III, II, and I;
- If a private wage survey is used, and the preferred wage is less than the corresponding level I OES wage, then USCIS will rank the registration in the same as an OES wage level 1;
- If the beneficiary will work in multiple locations, or in multiple positions if the prospective employer is an agent, USCIS will rank the registration based on the lowest corresponding OES wage level that the proffered wage equals or exceeds; and
- If there is no current OES prevailing wage information for the preferred position, the registrant will follow DOL guidance on prevailing wage determinations to select the OES wage level on the registration, and USCIS will rank and select based on the highest OES wage level.
The final rule is scheduled to take effect 60 days from its publication and would apply for the FY2022 H-1B Cap. However, it is possible that the rule could be delayed or suspended with the incoming Biden Administration on January 20th. Alternatively, the new regulation will likely be challenged in federal court with injunctive relief sought by litigants. In the meantime, USCIS believes it has sufficient time to allow for testing and modification of its system in order to implement the new rule. If USCIS determines that the registration process is inoperable, the agency may suspend the H-1B registration requirement at its discretion. A closer reading of the language suggests that USCIS, in modifying the registration system to interpret wage data, may possibly render the registration process inoperable, thus requiring a return to the original lottery system that existed prior to 2020, where we are required to file complete applications and await USCIS confirming whether a case was successfully selected. With 2020 in the rearview mirror all stakeholders in this process were looking forward to an orderly registration season, but with USCIS introducing this final rule at the 11th hour and starting to change the technology to fit the new rule, this year will definitely be another nail biter as we wait to see how this process will ultimately unfold.
Our firm is closely following this new final rule and its implementation. Over the coming weeks, as we begin our reach out for the H-1B cap season, we will have more insight regarding whether this new rule will remain in effect for the FY2020 H-1B Cap, depending on if the Biden Administration takes action or if the rule is challenged through the courts. We will timely provide updates as they arise.
Upcoming Webinars:
Key Immigration Updates and What to Expect in 2021 With President Biden (Two Dates to Chose From)
It is that time of year again, when companies look to support existing employees and new hires in their application for H-1B. We have seen unprecedented changes in business immigration in the last few years, and there is a strong likelihood of additional changes coming soon – including the Fairness for High Skilled Immigrants Act – all of which suggest maintaining stable non-immigrant status is an important part of any company’s immigration strategy. Join Managing Partner, David Zaritzky Brown, as he walks through what to expect for this upcoming H-1B Cap season and how our firm will process applications. A must attend for HR and employees who are going through the process.
Additionally, David will spend a few minutes providing key immigration updates related to Trump’s most recent maneuvers and Biden’s likely first steps post inauguration. The core program will be a quick 30 minutes and leave ample time for Q&A.
If your company or fellow HR colleague can benefit from such a session, please register, and invite your friends.
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Thank you and we look forward to having you at the event.
Best Regards,
The Team at Brown Immigration Law
** This newsletter/memo is provided for informational and discussion purposes only. It does not act as a substitute for direct legal contact on an individual basis **
