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Final Rule for H-1B Lottery Aims to Raise Wages for Visa Workers

Jan. 7, 2021, 3:22 PM

The Department of Homeland Security released a final rule changing next year’s lottery for H-1B specialty occupation visas from the current random selection process to one based on an individual’s wages.

The new selection system prioritizing registrations based on wage level “will incentivize H-1B employers to offer higher wages, or to petition for positions requiring higher skills and higher-skilled aliens that are commensurate with higher wage levels, to increase the likelihood of selection and eligibility to file an H-1B cap-subject petition,” the agency said in the measure made public on Thursday.

The rule will take effect 60 days after its publication in the Federal Register, which is scheduled for Friday.

Though that timeline extends past the end of President Donald Trump’s term, President-elect Joe Biden has said he’d work with Congress to reform temporary visas “to establish a wage-based allocation process and establish enforcement mechanisms to ensure they are aligned with the labor market and not used to undermine wages.”

“High skilled temporary visas should not be used to disincentivize recruiting workers already in the U.S. for in-demand occupations,” according to Biden’s immigration platform. The incoming president’s transition team didn’t immediately reply to a request for comment on its plans for the new measure.

H-1B Overhaul Continues

The regulation is the latest action taken by Trump’s administration to overhaul the H-1B program, an effort that began with his “Buy American, Hire American” executive order in 2017. Not all of those initiatives have succeeded. Courts have struck down interim final rules that would raise H-1B prevailing wage requirements and narrow which jobs qualify for the skilled-worker visa.

The H-1B selection process, or lottery, requires petitioners seeking one of the 85,000 H-1B visas available annually to first register electronically for each beneficiary on whose behalf they seek to file an H-1B cap-subject petition. If selected in the random drawing, the employer can then proceed with filing an H-1B application.

Under the finalized rule, the agency will prioritize the selection of H-1B registrations or petitions based on the highest corresponding wage levels, which are divided into four tiers. The agency said in the rule that this change will “disincentivize abuse of the H-1B program to fill relatively lower-paid, lower-skilled positions, which is a significant problem under the present selection system.”

But immigration attorneys have warned that a change in the lottery process that could raise wages beyond what a company can afford will reduce the number of H-1B workers available to employers.

DHS released the proposed rule Oct. 29. More than 1,100 public comments were submitted by Dec. 2.

To contact the reporter on this story: Genevieve Douglas in Washington at gdouglas@bloomberglaw.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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