The U.S.Department of Homeland Security (“DHS”) announced Thursday, January 7th, 2021, the final rule to amend H-1B regulations governing the process by which U.S. Citizenship and Immigration Services (“USCIS”) selects H-1B registrations for H-1B cap-subject petitions.
Under this new rule, which takes effect 60 days after publication in the Federal Register, USCIS will first select H-1B registrations based on the highest Occupational Employment Statistics prevailing wage level that the offered wage equals or exceeds for the relevant Standard Occupational Classification code and area(s) of intended employment. This means level IV wages will be prioritized above any H-1B Registration that includes the lower wage levels.
It is important to note that the President-elect Biden has already stated that his administration plans to delay the implementation of all regulations that have not taken effect on January 20, 2021, which includes this rule. This standard practice will delay the effective date of this rule by 60 days, which would push its applicability to the next cap period in FY’23. It is also likely that litigation will ensue as this regulation appears to violate Congressional intent in how Congress sought to implement the H-1B Cap Lottery.
Please contact SPS Immigration if you have questions regarding how this may impact your immigration case.