DHS Proposes To Replace H-1B Lottery With Wage-Level Based H-1B Cap Selection Process

Department of Homeland Security (DHS) has announced that it proposes to amend its regulations governing the H-1B cap selection process by which USCIS selects H-1B registrations for the annual H-1B cap. DHS proposes to replace the current random selection process with a wage-level-based selection process. The new selection process would prioritize the selection of H-1B registrations based for those being offered the highest wages.

Some of the key changes proposed by DHS to the H-1B cap selection process are as below:

• If USCIS received fewer registrations than necessary during the initial H-1B cap registration period, it would select all registrations properly submitted, regardless of wage level, and would continue to accept registrations until the sufficient number of registrations to reach the H-1B cap are received.
• If USCIS received more registrations than necessary during the initial H-1B cap registration period, USCIS would rank and select the registrations on the basis of the OES wage level of the proffered wage. It would rank and select registrations whose proffered wage have highest OES wage level. USCIS will begin with OES wage level 4 and proceed in descending order with OES wage levels 3, 2, and 1.
• If USCIS receives more registrations, at a particular wage level, than necessary to meet the H-1B regular cap or H-1B Masters cap exemption, it would randomly select from all registrations within that particular wage level a sufficient number of registrations needed to reach the respective annual cap numbers.
• The proposed changes would not affect the order of selection between the regular cap and the advanced degree exemption. If USCIS receives more registrations than necessary to reach the regular cap during the initial registration period, it would first rank and select registrations whose proffered wage have highest OES wage level. Thereafter, USCIS would complete the same ranking and selection process to meet the advanced-degree exemption. If more registrations than necessary to reach the Masters cap were received during the initial registration period, USCIS would first rank and select registrations whose proffered wage have highest OES wage level. If fewer registrations than necessary to reach the advanced degree exemption were received, USCIS would select all registrations properly submitted, regardless of wage level, and would continue to accept registrations until the H-1B Masters cap is reached.
• As part of the initial H-1B cap registration, employers will be required to provide the OES wage level of the proffered wage that the employer intends to pay the beneficiary.
• If USCIS were to receive insufficient number of petitions during the initial H-1B cap filing period, it would select additional registrations, or reopen the registration process.

The proposed rule is open for comments for 30 days and DHS will review comments relevant to the proposed rule before issuing a final rule. Comments on the proposed rule may be submitted through the federal e-rulemaking portal http://www.regulations.gov. Comments submitted in any other manner, including e-mails or letters sent to DHS or USCIS, will not be considered comments on the proposed rule and may not receive a response from DHS.

We will continue to monitor the developments closely and will keep our readers updated.

If you have any questions regarding the H-1B cap registrations, or need help filing an H-1B cap petition, contact VisaPro Law Firm today. Our experienced immigration attorneys will be happy to assist you.