DHS Announces Final Rule Modifying H-1B Selection Process

08 January 2021

In a press release titled “Rule Expected to Protect the Economic Interests of American Workers,” the Department of Homeland Security announced changes to the H-1B visa lottery selection process.

The new rule will prioritize petitions that offer a higher wage. USCIS’s idea is that entry level positions are being filled by H-1B visa recipients and this is impacting the job opportunities for U.S. citizens qualified for that same position. This makes little sense because the petitioning companies are required to pay the prevailing wage for the occupation, prioritizing higher wage positions does not change the fact that a job opening exists for those lower levels.

The new rule will be effective for this years H-1B visa filings. The process replaces the traditional lottery system USCIS has used in the past when there were more H-1B petitions filed than are statutorily allowed. Each year the law allows 85,000 H-1B visas and there have been about 200,000 petitions filed.

The updated process will change how USCIS selects which petitions to accept. They will review the petitions and those that have the highest wage level rate based on the Bureau of Labor Statistic’s Occupational Employment Statistics (OES) program. This is meant to encourage employers to offer the highest wage rate for the position.

While it is possible that some employers will select a higher wage rate, the reality is that the positions can’t be economically filled at a higher rate and the employers will be without the personnel they so desperately need to grow their business.