Wage Lottery Interim Rule Published

By: Rachel Horner

USCIS has published an Interim Final Rule that would change the H-1B cap selection process. The new rule, entitled “Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject H-1B Petitions,” was published on January 8, and will go into effect on March 9.  

The previous process for selecting H-1B registrations during the lottery procedure was based on a random, computer-generated program. In the new process, registrations for H-1B cap-subject petitions will be picked in favor of the highest wage level. Specifically, those with an OES wage level of IV would be selected first, followed by levels III, II, and I.   

DHS defended its IFR in a manner similar to its previous wage level IFR. They stated that by prioritizing employers who hire employees with the highest wages, they will ensure that employers would therefore be hiring the most skilled and useful individuals, as they believe wage is directly commensurate with experience and importance. By rewarding those employers who offer a higher wage, DHS hopes to discourage those who they believe “abuse” the H-1B system and try to skip out on hiring American employees by searching for cheap foreign international labor, a problem DHS has been trying to fight for quite some time.  

It will not be a surprise if the same arguments made against the previous wage IFR are made for this same rule. While USCIS stated that they had to take the public’s comments into account for this new rule, they are again publishing it as an IFR, leaving no time for the public to comment. In addition, their basis of prioritizing wages as a way to help the American economy has been deemed questionable multiple times in the past. The prioritization of wages does not account for small businesses, who may hire highly skilled workers but do not have the resources to pay them a high wage, as well as those just starting out from college who cannot obtain a high-wage job.  

It is very possible this rule will be challenged in court like the many prior ones that attempted to restrict the H-1B process. President-elect Biden has already alluded to the fact that immigration, and specifically, reversing many of the Trump administration’s damaging policies, would be a top priority for him in the early going.  

Stay tuned for updates on President Biden’s immigration policy.