DHS Publishes New Rule, Changes How H-1B Petitions Are Selected

Dallas immigration lawyers – Rabinowitz & Rabinowitz, P.C.

Dallas, TX (Law Firm Newswire) January 27, 2021 – The Department of Homeland Security (DHS) released a final rule that changes the H-1B selection process from a random lottery to a system that prioritizes petitions with the highest wage levels. The final rule was published in the Federal Register on January 8, 2021.

“The new rule selects H-1B petition registrations with the highest offered wage rate first and then those with lower wage rates in descending order, leaving it likely that few H-1B registrations for entry-level petitions will be selected,” commented Stewart Rabinowitz of the Dallas and Frisco law firm of Rabinowitz & Rabinowitz, P.C.

Under the finalized rule, U.S. Citizenship and Immigration Services (USCIS) will select H-1B petition registrations according to the highest Occupational Employment Statistics wage tier for the Standard Occupational Classification code in the area of intended employment. The agency claimed the new wage-based system will help curb “abuse of the H-1B program to fill relatively lower-paid, lower-skilled positions.”

“The virtue of the H-1B program is that it has offered H-1B employers needing fresh sources of talent to make up for U.S. worker shortages in areas such as high tech, with the opportunity to tap the best and brightest foreign graduates possessing high skills,” said Rabinowitz. “Thoughtful comments by affected persons fell on unheeding ears in that of the nearly 1,500 comments USCIS received from affected persons to its proposed rule, it accepted not a single one. Nowhere in the statute is there mention of selecting petitions by wage rates. Court challenges almost certainly will follow.”

The modified registration requirement is scheduled to take effect on March 9, 2021, unless the incoming Biden Administration announces a delay or stop to the rule’s implementation. DHS originally published the wage-based selection proposal in the Federal Register on November 2, 2020. It was open to the public for a 30-day notice and comment period.