DHS Proposes Major Changes to the H-1B Lottery Selection Process

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

Dallas, TX (Law Firm Newswire) February 19, 2021 – The Department of Homeland Security (DHS) has proposed replacing its existing random lottery selection process for allocating H-1B visas with a weighted, wage-based system that prioritizes registrations offering highly-paid positions. If finalized, the new regulations would restrict H-1B eligibility and present additional hurdles to future H-1B sponsorship.

The proposed changes, published in the Federal Register on November 2, 2020, would give preference to H-1B registrations in which employers have agreed to pay the highest corresponding wage level in the Department of Labor’s (DOL) four-tiered system. If the number of registration submissions exceeds the annual 85,000 quota, U.S. Citizenship and Immigration Services would rank and select registrations in descending order based on the wage level selected by the petitioning employer.

“By changing the criteria of lottery selection to preferring petitions paying the highest prevailing wage levels from a simple random selection of petitions of those filed, DHS has created a new selection scheme detached from any statutory requirement,” commented Stewart Rabinowitz of the Dallas and Frisco law firm of Rabinowitz & Rabinowitz, P.C. “Nowhere in the statute is there any reference to preferring a higher paid H-1B worker over any other H-1B worker. The proposed lottery revision dovetails nicely with DOL’s recent changes in calculation of prevailing wage determinations, effectively requiring employers to pay a higher wage than similarly situated U.S. workers. The two provisions together have a simple goal in mind: kill the usefulness of the H-1B program to U.S. employers, something the Trump Administration has been unable to do through Congress.”

DHS claimed the new selection process would provide “a better way to allocate H-1B visas when demand exceeds supply.” The agency said if the proposed rule was finalized, it would incentivize employers to offer higher salaries or petition for vacancies requiring higher-skilled employees instead of using the program to fill lower-skilled positions associated with lower wages, as employers may choose to do today. Inexplicably, DHS considers U.S. employers’ legitimate use of the H-1B program to employ lower-skilled specialty occupations workers and pay such workers the prevailing wage as abusive.

The proposed changes would apply to both the H-1B regular cap and the H-1B advanced degree exemption. The proposal was open for a 60-day public comment period after being published in the Federal Register.