US Citizenship & Immigration Services (USCIS) announced the publication of a final rule this week that will “modify the H-1B cap selection process, amend current lottery procedures, and prioritize wages to protect the economic interests of U.S. workers and better ensure the most highly skilled foreign workers benefit from the temporary employment program.” This final rule will end the H-1B visa lottery and instead allow USCIS to adjudicate H-1B petitions based on registrations starting with the highest salary level and going down, as Stuart Anderson explains in Forbes.
USCIS states that the goal of modifying the H-1B cap selection process is to incentivize employers to offer higher salaries and/or petition for higher-skilled positions and allow employers to “establish a more certain path for businesses to achieve personnel needs and remain globally competitive.” The final rule affects H-1B registrations (or petitions, if the registration process is suspended) submitted by prospective petitioners seeking to file H-1B cap-subject petitions and will be implemented for both the H-1B regular cap and the H-1B advanced degree exemption cases.
In a statement, USCIS Deputy Director for Policy Joseph Edlow claimed: “The H-1B temporary visa program has been exploited and abused by employers primarily seeking to fill entry-level positions and reduce overall business costs. The current H-1B random selection process makes it difficult for businesses to plan their hiring, fails to leverage the program to compete for the best and brightest international workforce, and has predominately resulted in the annual influx of foreign labor placed in low-wage positions at the expense of U.S. workers.”
Immigration advocates and practitioners have questioned the legality of the final rule as it did not consider any of the public comments on the proposed rule. Additionally educational advocates note many recent international graduates would very likely be shut out of the H-1B program because of the rule. “The proposed rule is unsound policy, not supported by statute, and will serve only to further undermine the ability of our colleges and universities to recruit and retain international students,” Miriam Feldblum, executive director of the Presidents’ Alliance on Higher Education and Immigration, said in Forbes. “H-1B visas serve as a critical pathway for these students. The proposed rule will block these opportunities by imposing a system that grants H-1B petitions based on the highest salary first, locking out many new international graduates of U.S. colleges and universities. Our communities, economy, and country will lose, while other countries that facilitate policies for international students to stay and work will benefit.”
The final rule will be effective March 9, 2021. It is not clear yet what action if any the incoming Biden administration will take on the final rule, and legal challenges to the final rule are likely.
UPDATE FEBRUARY 9, 2021: USCIS announced that the final rule that would end the H-1B lottery and instead adjudicate H-1B petitions based on highest salary will be delayed until December 31, 2021. USCIS notes they will apply the regulations currently in place (that is, the random lottery) to the initial registration period for Fiscal Year 2022, and any subsequent registration periods for the FY 2022 registration process that takes place before December 31, 2021.