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On January 8, 2020, the Department of Homeland Security (DHS) published a final rule that replaces the H-1B cap lottery system with a system that allocated H-1B visa numbers according to the Department of Labor’s Occupational Employment Statistics (OES) four level wage system. The final rule would thereby prioritize foreign nationals whose offered salaries are in the highest wage level for their occupation and geographic area. The final rule also will not change the order of selection between the regular cap and the Master’s cap.

The final rule is scheduled to take effect 60 days from January 8, 2020 and is intended to be implemented for the Fiscal Year (FY) 2022 H-1B cap season this year.

Below are specifics of the new selection process:

  • Allocation of H-1B cap numbers would be based on the highest OES prevailing wage level that the offered wage equals or exceeds. Priority would be given to the level IV prevailing wage level and then from descending order from wage levels III, II, and I.
  • If an offered wage is lower than the OES wage level because a private wage survey is used, USCIS will consider it in the same category as OES wage level I.
  • If the beneficiary will work in multiple locations, USCIS will consider the lowest corresponding OES wage level that the offered wage will equal or exceed.
  • If there is no available OES prevailing wage information for the offered position, USCIS will consider it based on the OES wage level that corresponds to the requirements of the position.
  • If the number of registrations for a specific wage level exceed the number of H-1B cap slots available, a computerized lottery will be utilized.

DHS is also in the midst of revising its online H-1B cap registration form to request information on the OES wage level associated with the offered wage and position.

The final rule could be challenged in federal court, placed on hold by the Biden Administration after inauguration, or simply take effect. If the rule is likely to be implemented for the FY 2022 cap season, USCIS will publish instructions for stakeholders.

SW Law Group will keep you up to date regarding this matter.