USCIS ‘Final Rule’ for H-1B visas prioritizes wages, effectively ends lottery system

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The U.S. Citizenship and Immigration Services announced this Jan. 7, 2021, a final rule that will modify the H-1B cap selection process, amend current lottery procedures, and prioritize wages.

The National Law Review writing about this latest development, said if this Final Rule is left intact, it will implement major changes to the H-1B visa program, essentially doing away with the random lottery system currently in use for issuing 85,000 new H-1B visas, and “replace it with a selection system weighted to favor petitions with higher salary offers for the sponsored H-1B worker.”

The USCIS has maintained that the goal of this change was to protect the economic interests of U.S. workers and better ensure the most highly skilled foreign workers benefit from the temporary employment program.

The ‘Final Rule’ entitled, “Modification of
Registration Requirement for Ptitioners Seeking To File Cap-Subject H-1B Petitions,” published by the Department of Homeland Security on Jan. 8, says it will go by generally first selecting registrations based on the highest Occupational Employment Statistics (OES).

“Modifying the H-1B cap selection process will incentivize employers to offer higher salaries, and/or petition for higher-skilled positions, and establish a more certain path for businesses to achieve personnel needs and remain globally competitive,” the USCIS claimed.

The USCIS Deputy Director for Policy Joseph Edlow maintained that, “The H-1B temporary visa program has been exploited and abused by employers primarily seeking to fill entry-level positions and reduce overall business costs.”

Edlow goes on to say that “The current H-1B random selection process makes it difficult for businesses to plan their hiring, fails to leverage the program to compete for the best and brightest international workforce, and has predominately resulted in the annual influx of foreign labor placed in low-wage positions at the expense of U.S. workers.”

This effort will only affect H-1B registrations (or petitions, if the registration process is suspended) submitted by prospective petitioners seeking to file H-1B cap-subject petitions..

The final rule will be effective March 6, 2021, unless the incoming Biden administration chooses a different path and/or suspends the Final RuleA.

“Despite receiving almost 1500 comments, DHS declined to change the regulatory text proposed in the Notice of Proposed Rulemaking (NPRM) published on November 2, 2020,” the National Law Review noted. The new rule will have a negative effect on “the employment of new graduates and entry-level workers, academic institutions, healthcare workers and facilities, employers, and the economy. DHS was not persuaded,” the National Law Review said.

But the DHS responded by saying it had “carefully considered” the public comments received before deciding to publish the proposed regulations as a final rule.

According to experts, the H-1B program has been widely used to hire many entry-level positions, particularly in STEM-related fields where there is a lack of adequate American trained workers, and that ending it would be harmful to the U.S. economy.

With a Democratic-controlled Congress and White House, Jan. 20, it is possible that the new steps will be overturned.