Please complete this brief survey
to let us know how we are doing with our communications (these alerts and our weekly newsletter) so that we can continue to finetune and best serve you. Thank you in advance for your support in completing the survey.
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: