The DHS has announced a new H1B rule today which aims to change the H1B visa lottery system from random selection to ‘highest wage first‘.
The rule has been finalized and will be applicable 60 days from the day of publishing. It is expected to be published today i.e. Jan 8, 2020.
This will make it applicable from Mar 9, 2021 which is within time to use it for Apr 2021 H1B season.
USCIS has estimated the effect on lottery selections with the new wage level preference based on last year’s H1B registrations:
- There is no chance for Level 1 wage workers to get selected in the new H1B lottery based on wage levels.
- Level 2 wage has about 75% chance in the regular cap where the same reduces to 20% for US advanced degree category.
- Level 3 and Level 4 H1B wages have a very good chance of getting selected in the lottery.
This article will discuss:
H1B Wage Levels using Zip Code
The wage level ranking would occur first for the regular cap selection and then for the advanced degree exemption.
- Select an H1B candidate based on the highest-paid wages first when there are more applications than the yearly quota of 85k applications.
- The random selection by lottery will be abolished.
The rule will be implemented for both H-1B regular cap and H-1B advanced degree candidates. The order of selection will remain the same though.
Ranking – H1B Lottery
USCIS would rank and select the H1B lottery registrations received on the basis of the highest OES wage level that the offered wage would equal or exceed for the relevant SOC code.
This wage level would be 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 employer submitted a non-OES wage survey with a lower salary than the OES level 1, then USCIS will count it as Level 1 for the purpose of lottery selection.
You can check how much wage will be required to get a spot in the next H1B lottery using this simple app by am22tech.
#1 Less Registrations than Total Quota
If fewer registrations than necessary to reach the regular cap were received during the first 14 days of the H1B registration period, USCIS would select all registrations submitted during the annual initial registration period regardless of wage level.
It will also continue to accept registrations until they determine a final registration date based on the submission of a sufficient number of registrations to reach the regular cap.
#2 More Registrations than total Quota
If more registrations were submitted on the final registration date than necessary to reach the regular cap, USCIS will rank and select registrations from among those submitted on the final registration date based on the highest corresponding OES wage level that the offered wage equals or exceeds for the relevant SOC code and in the area of intended employment.
#3 More Applications at one wage level than Quota
If USCIS receives and ranks more registrations at a particular wage level than the projected number needed to meet the applicable numerical allocation, they will randomly select from all registrations within that particular wage level.
A sufficient number of registrations will be selected that are required to reach the applicable numerical limitation.
#4 H1B with mUltiple Work Locations in Different Wage Level Zip Codes
If the H-1B would work in multiple locations, or in multiple positions, USCIS would rank and select the registration based on the lowest corresponding OES wage level that the offered wage will equal or exceed.
Therefore, the H1B employer would be required to specify on the registration the lowest corresponding OES wage level that the offered wage would equal or exceed.
H1B Extension, Transfer, Amendment Affected?
The existing H1B extension, transfer, amendment, and change of status are not affected. The wage level ranking is only applicable for new cap subject H1B applications.
The new proposed rule to select the H1B lottery based on the highest wage levels will only be an application for new lottery-based applications.
The existing H1B extensions, transfer, amendments, and change of status will need a new LCA with higher wages as per a separate rule issued by the department of labor.
DHS claims that they have the authority to modify the H1B lottery selection process and have cited various laws in their proposed rule.
It would be interesting to see if a lawsuit is filed challenging their intent. The chances of any stay order seem low though at this time.
You can read the full proposed DHS H1B wage rule for lottery system here.