On Jan. 8, the Department of Homeland Security published a final rule, effective March 9, changing the way the U.S. Citizenship and Immigration Services (USCIS) will select H-1B cap-subject registrations. Instead of using a random selection process, which it has done every year to date, USCIS will now rank and select registrations based on wages, selecting those with the highest wage first.

Employers will be required to register each prospective H-1B employee on the USCIS website and, for each registration, submit the salary, corresponding Occupational Employment Statistics (OES) wage level, and the area(s) of intended employment. When the registration window closes, USCIS will pool all registrations with wages in OES Level IV (the highest wage level) and make its selections. When those are exhausted, USCIS will proceed in descending order for registrations with OES wage Levels III, II and I, assuming there are numbers left.

When employers rely on alternate wage sources (other than OES) where the wage is lower than the OES wage Level I, USCIS will treat the registration as an OES Level I wage. When the wage is at or higher than Level 1, USCIS will rank it according to the corresponding OES wage level (e.g., offered salary is $65K, OES Level 1 is $50K and Level 2 is $75K, then for OES purposes the salary will be pooled with Level 1). Also, when there are multiple worksites, USCIS will rank and select the registration based on the lowest OES wage level from among those worksites. Where there is no current OES prevailing information, the rule states USCIS will base the ranking and selection on the wage level it deems corresponds best to the requirements of the proffered position.

We note that the incoming Biden administration has indicated its intention to delay or halt regulations that have not taken effect by Inauguration Day, Jan. 20. Given that the effective date of this final regulation is March 9, we expect that the administration will look closely at suspending this regulation. We will immediately provide an update as more information becomes available.

Originally Published by Kramer Levin, January 2021

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