A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration lawyer. We serve clients in all U.S. states and overseas countries. (All information is not legal advice and is subject to change without prior notice.)

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Tuesday, November 10, 2020

Rules to Change the H-1B CAP Selection Process and Prevailing Wages

Right before the 2020 Presidential Election, the Trump Administration published a proposed rule on 11/02/2020 to revamp the current H-1B CAP selection process.  The central idea of the rule is to change the H-1B visa selection process based on the actual salaries offered by the employers.   

Under the current system, petitioners submit a registration for beneficiaries electronically during a designated period. If the number of registrations received exceed the applicable numerical allocation, USCIS will run a lottery to randomly select registrations for further processing.  Selected registrants will be notified to submit H-1B cap-subject petitions during a required filing period. 

Under the rule published by the Department of Homeland Security (DHS), USICS would have to rank and select registrations based on the proffered salary offered to H-1B beneficiaries for the CAP applications. Whenever the annual cap is reached, USCIS would start picking registrations that are filed by petitioners who are offering the highest salaries with their positions. The selection process will continue in descending order to registrations that have been filed for beneficiaries with lower salaries.

Currently, there are 4 wage levels, set by the Department of Labor, for H-1B applications as well as employment-based green card applications. These "prevailing wage" levels will be used as a standard of the ranking.  By law, employers must offer a salary that is higher than the prevailing wage for a particular level of employment.  

Prevailing wages are the wage requirements set by the DOL based on their salary surveys in each employment location. A new rule published on 10/8/2020 by DOL substantially increased the wage requirements, and it took effect almost instantly upon publication. This is another way for the Trump Administration to increase the wage requirements for employers to hire foreign workers.  

Working together, the new rules on H-1B selection and the wage requirements will set the bar very high for H-1B applications.  In fact, these new rules work as a de facto bar for certain employers including small and medium-sized businesses as well as non-exempt universities to hire foreign workers, as it would be very difficult for them to compete with the likes of Google and Microsoft when it comes to offers of salaries.  

Lawsuits have already been filed by employers and other parties to stop the enforcement of these rules.  Given the manner and speed that these rules were pushed out, the courts are very likely to agree with the employers.  Further, the new Biden Administration may also choose not to defend these Trump regulations or to cancel them directly.  Hence, the actual impact of these new rules may be short-lived. Still, employers must plan carefully during the interim to minimize the impact of these remnants of the Trump Administration. 

 (Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule legal consultation.) 

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