H-1B Rule to Create Wage-Based Lottery Delayed Until Years’ End

Feb. 4, 2021, 10:53 PM

A finalized rule that would change the annual H-1B selection process from random lottery to wage-based priority has been put on hold.

According to a notice released Thursday, the Department of Homeland Security is delaying the rule’s effective date until Dec. 31, 2021, because U.S. Citizenship and Immigration Services won’t have enough time to overhaul the process before the online registration period opens in March. USCIS is the sub-agency responsible for conducting the lottery for the specialty occupation visas.

The DHS needs “adequate time to complete system development, thoroughly test the modifications, train staff, and conduct public outreach” to ensure an “effective and orderly” implementation of the rule, the agency said in a notice scheduled for publication in the Federal Register Feb. 8.

The final rule to overhaul the visa program’s lottery was released by the agency last month. The new selection system was meant to incentivize H-1B employers to offer higher wages, or to petition for positions requiring higher skills, to increase the likelihood of selection and eligibility to file an H-1B cap-subject petition. Each year 85,000 such visas are available.

The rule was set to go into effect March 9. It was one of the final actions taken by former President Donald Trump’s administration to overhaul the H-1B program, an effort that began with his “Buy American, Hire American” executive order in 2017.

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

To contact the editors responsible for this story: Andrew Harris at aharris@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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