2021 H-1B Back to Lottery System
The Department of Homeland Security (DHS) just announced that it will pause the H-1B Wage Selection Final Rule, which propose to replace the current lottery selection with a wage-based selection system.
The proposed new wage-based rule will only be effective AFTER December 31, 2021.
What does it mean for you?
If you plan to file a new fiscal year H-1B application, it means that the selection of the cap-subject H-1B will be based on the existing lottery rule.
The H-1B selection rule may be changed to a wage-based system starting next year.
For existing H-1B beneficiaries, there is no change. If you plan to transfer, extend, or amend your H-1B, there is no change.
What’s the timeline for 2021’s H-1B lottery?
3/9~3/25: register for new fiscal year lottery selection;
3/25~3/31: the USCIS selects H-1B applicants based on a lottery process and notifies the petitioners;
4/1~6/30: selected petitioners prepare the application package and submit;
7/1~9/30: if the selected petitioners fail to submit the application timely, the quota will be released for lottery process, and thus petitioners should watch for the selection notification during this time.
What’s the new salary-based rule anyway?
OnJanuary 8, 2021, the Department of Homeland Security (DHS) published its controversial regulation to amend the H-1B visa lottery that has been used for many years. The “Final Rule” will take effect on March 9, 2021.
The regulation authorizes U.S. Citizenship and Immigration Services (USCIS) to end the H-1B lottery. In place of the H-1B lottery, USCIS would receive registrations before the start of a fiscal year (likely starting on March 1) and if more registrations are received than the H-1B limit allows, the USCIS would select H-1B registrations by first selecting registrations based on the highest Occupational Employment Statistics (OES) prevailing wage level (level 4 ), and proceeding in descending order with OES wage levels 3, 2, and 1.
The USCIS will select 65,000 petitions from all beneficiaries, and then 20,000 petitions for individuals with an advanced degree from a U.S. university.
The Final Rule requires employers to first electronically register with USCIS during a designated registration period, and then select the registrations based on the wage level of the proffered wage. Only selected registrations are allowed to file H-1B petitions with USCIS thereafter.
Based on the data of last year, DHS predicted no individuals paid Level 1 wages would be selected for H-1B petitions, and about 25% of individuals paid Level 2 wages would not be chosen either. DHS asserted everyone at Level 3 and Level 4 would be selected but concedes a lot more individuals at Level 2 wages may be shut out of petitions if there are more registrations than in the past for H-1B visa holders at Level 3 and Level 4 wages.