KLF Client Alert - Survey, Potential Changes to H-1B Lottery, and Other Updates

Survey, Potential Changes to H-1B Lottery, and Other Updates

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Potential H-1B Lottery Changes

Firstly, if you have not already, please let us know if your company will need to sponsor any employees for H-1B cap registrations this year, such as graduates working for your company currently in OPT status, so that we can start to prepare. The filing window is predicted to again be from March 1 to March 20 and it is vital that preparations are not left to the last minute.

Secondly, you may have seen in the news that a final rule was recently published as one of the last actions of the Trump Administration, to alter the methods through which H-1B cap cases are selected during the registration process by giving precedence to higher wages. This article by our friend Stuart Anderson of NFAP provides a great commentary regarding these potential changes.

It is important to note, however, that this change may not proceed. The rule is scheduled to take effect on March 9, 2021, but the President-Elect’s transition team has indicated that the Biden Administration will issue a memorandum on January 20 delaying implementation of “midnight regulations” (i.e., those issued since the election but not yet effective). It is anticipated that the Biden Administration will adopt a 60-day delayed effective date for such midnight regulations. Depending on how the memorandum is worded, the effective date of this DHS final rule could be delayed either to March 21, 2021 (60 days from the date of the Presidential memorandum) or May 8, 2021 (60 days from the regulation’s effective date as published in the Federal Register).

Furthermore, the final rule is likely to be challenged in federal court on both substantive and procedural grounds, with the possibility of injunctive relief further delaying implementation. The wage based H-1B selection system is contrary to the plain language of the statute, which provides at section 214(g)(3) of the INA that H-1B cap numbers “shall be issued . . . in the order in which petitions are filed for such visas or status.” In addition, various federal courts across the United States have concluded that Chad Wolf was not lawfully serving as Acting Secretary of Homeland Security and any actions he has taken as Acting Secretary are void, which could strengthen the legal basis for challenging this regulation in federal court.

Regardless, the following summary provides an overview of the main provisions of the rule and how it would change the H-1B registration process:

If more registrations are received during the annual initial registration period than necessary to reach the applicable numerical allocation, USCIS will rank and select the registrations received on the basis of the highest OES wage level that the proffered wage equaled or exceeded for the relevant SOC code and in the area of intended employment, beginning with OES wage level IV and proceeding in descending order with OES wage levels III, II, and I.
If the proffered wage falls below an OES wage level I, because the proffered wage is based on a prevailing wage from another legitimate source (other than OES) or an independent authoritative source, USCIS will rank the registration as OES level I.
After completion of the selection process for the regular 65,000 H-1B cap, USCIS will utilize the same ranking and selection process to meet the advanced-degree exemption if a sufficient number of registrations were submitted during the annual initial registration period to reach the advanced-degree exemption.
If USCIS receives and ranks more registrations at a particular wage level than the projected number needed to meet the applicable numerical allocation, USCIS will randomly select from all registrations within that particular wage level to reach the applicable numerical limitation.
If the H-1B beneficiary will work in multiple locations, USCIS will rank and select the registration based on the lowest corresponding OES wage level that the proffered wage will equal or exceed.
Where there is no current OES prevailing wage information for the proffered position, USCIS will rank and select the registration based on the OES wage level that corresponds to the requirements of the proffered position.
DHS has proposed changes to the H-1B electronic registration tool and Form I-129 to require petitioners to indicate the highest OES wage level that the beneficiary’s proffered wage equals or exceeds for the relevant SOC code in the area of intended employment.
USCIS may deny or revoke approval of a subsequent new or amended petition filed by the petitioner, or a related entity, on behalf of the same beneficiary, if USCIS determines that the filing of the new or amended petition is part of the petitioner’s attempt to unfairly decrease the proffered wage to an amount that would be equivalent to a lower wage level, after listing a higher wage level on the registration to increase the odds of selection.
USCIS will not deny an amended or new petition solely on the basis of a different proffered wage if that wage does not correspond to a lower OES wage level than the wage level on which the registration was based.
Notably, DHS estimates in its final rule that under the new wage based selection process, no registrations for individuals who are paid a Level 1 wage will be selected to submit an H-1B cap-subject petition.

Other Updates

All international arrivals to the United States will need to show a negative COVID-19 test before boarding effective January 26, 2021. Read more here.
The planned USCIS fee changes which were enjoined have now been completed dropped. Read more here.
The Trump Administration has re-promulgated the rule increasing the prevailing wages for H-1B, E-3, and PERM, but as mentioned above, the incoming Administration is likely to pause all "midnight regulations" such as this. Read more here.

Please contact us at info@klugfirm.com or +1 (212) 495-9245 if your company requires any U.S. business immigration law assistance.

You can access our previous Client Alerts here.