On January 7, USCIS announced the publication of a final rule for new H-1B petitions in 2021. The new rule gives priority to those petitions filed that offer "Level IV" wages (wages around the 75th-80th percentile of local wages for the occupation) per the Department of Labor's OES survey, and then gives priority in descending order to petitions offering Level III, Level II, and Level I wages until the numbers run out.
The selection of new H-1B petitions when demand exceeds the available 85,000 numbers has been by random selection, or "lottery," for over a decade. This final rule states that random selection will only happen between petitions in the lowest wage band for which numbers are still available: if 50,000 petitions are used in Level IV and III, for example, and more than 35,000 petitioners are offering Level II wages, then the lottery will be held only among those petitions offering Level II wages (with all Level I petitions being rejected).
Before planning H-1B filing strategy around this rule, however, employers should note that President-elect Biden's inauguration is on January 20, well before the rule can go into effect. Likely, one of his first acts as President will be to delay the effective date of any final rule that has not yet gone into effect for 60+ days, which will include this rule. That delay will keep the rule from applying to this year's H-1B lottery.
Even without Biden's inauguration as the impediment to this rule becoming effective, it will likely be successfully challenged in federal court, because Congress has mandated that H-1B petitions be made available in the order in which petitions are filed, not the order of wages offered.
Details:
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
