United States Citizenship and Immigration Services (“USCIS”) has announced that the January 2021 final rule modifying the H-1B selection process has officially been withdrawn by The Department of Homeland Security (“DHS”). This rule would have eliminated the random selection process known as the H-1B visa lottery, and replaced it with a process prioritizing those foreign nationals who are offered the highest salaries relative to their occupation and geographic area according to the Department of Labor’s (“DOL”) prevailing wage system.

The withdrawal of the final rule, which was to go into effect December 31, 2021, is a welcomed victory for advocates concerned with higher education, who noted that many recent international graduates would very likely have be shut out of the H-1B program if the high salary rule had been implemented. Essentially, “employers would naturally offer individuals with less experience in the U.S. labor market lower salaries (Level 1 under the Department of Labor wage level system) than more experienced professionals. Adopting the rule would lead the United States to establish a system—unlike any of its competitors for talent in other countries—that favors the most senior foreign nationals over young, promising talent, particularly recent graduates of U.S. universities.”

Prior to the withdrawal of the final rule, there were signs that the Biden administration would withdraw the rule as their defense of the cases of U.S. Chamber of Commerce v. Department of Homeland Security, Case No. 20-cv-07331 (N.D. Ca., March 19, 2021) and Humane Society of NY, et al. v. Alejandro Mayorkas, et al., stalled.