A proposed rule from the Department of Homeland Security (DHS) that would apply a weighted selection process to the annual H-1B ceiling has been authorized by federal review. The proposal for review was sent to the Office of Management and Budget (OMB) three weeks ago. By giving preference in the selection process to registrants who meet or exceed certain requirements, such as wage or educational attainment, the proposed regulation may seek to replace or supplement the annual H-1B cap lottery. However, the specifics will remain confidential until they are published in the Federal Register.
DHS finalized a change to the cap selection process in the last weeks of the first Trump Administration that would have essentially replaced the computerized H-1B lottery with a system that distributed H-1B visa numbers based on the Department of Labor’s four-level prevailing wage system. A computerized lottery would have been used only if the number of registrations for a particular wage level exceeded the number of H-1B cap slots available. According to that regulation, registrants who offered a wage that equaled or exceeded Level IV, the highest wage tier of the prevailing wage system, would have first received their H-1B cap numbers. Registrations would then have been chosen in descending order from Wage Levels III, II, and I. During the early days of the Biden Administration, the final regulation was delayed, and a federal judge eventually revoked it before it was ever put into effect. It is currently unknown if the rule that was finalized in early 2021 and the proposal that is currently being reviewed are the same.
In the upcoming days or weeks, the proposed regulation is anticipated to be published in the Federal Register, with a 30- or 60-day public comment period. A final version of the regulation with an implementation time would be published by the agency after carefully reviewing the comments. A final rule can be published at any moment, although the process usually takes many months.
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Luke Bowman
The Law offices of Luke Bowman