DHS Announces New Rule for H-1B Lottery | Joseph & Hall P.C.

On January 7, 2021, USCIS introduced a closing rule that’s meant to switch the prevailing H-1B “lottery” choice course of from its present mannequin, which is randomized, to a brand new mannequin that prioritizes larger wage ranges.  The broad impact of the rule could be that the best paid H-1B candidates could be extra prone to be chosen, and entry stage staff virtually definitely won’t be chosen.

As background, the Division of Labor, using wage knowledge collected from the Bureau of Labor Statistics, calculates 4 wage “ranges” based mostly on the duties, necessities, and expertise required for a given place in a given space.  These vary from a stage 1 entry stage employee to a extremely skilled or specialised stage 4 employee.  The salaries at these ranges are massively totally different.  For instance, within the Denver metro space, a stage 1 Software program Developer must be paid $74,256 per yr, the place a stage 4 Software program Developer must be paid $128,898 per yr.

The impression of this rule could be immense on many companies, industries, and people, however maybe most notable is the case of worldwide college students.  Worldwide college students fairly often come to america, work at an organization pursuant to their research, and these corporations finally apply for the coed to turn out to be an H-1B employee.  With out vital expertise, and solely being out of faculty for a brief time period, the coed would usually be positioned in a stage 1, entry stage place.  The rule ostensibly considers this example, suggesting as a substitute that college students might purchase enough expertise, and employers could also be prepared to pay these larger stage salaries, however that proposition appears, at first blush, a bit indifferent from the fact of hiring and wage choice making.

The rule is, not less than on an preliminary learn, open to litigation, the Biden Administration has requested that company heads take into account suspending the rule’s efficient date, and in any occasion the efficient date of the rule falls in the midst of the registration interval for this yr’s lottery, so it’s unclear whether or not employers must content material with this new coverage, both this yr or in years to return.  It’s, nonetheless, a sign that the H-1B program should face extra adjustments and new hurdles as we transfer ahead beneath a brand new administration.