New H-1B Visa Changes 2021

Welcome back to the Immigration Lawyer Blog, where we discuss all things immigration. In this video attorney Jacob Sapochnick provides an important update regarding upcoming changes to the H-1B lottery program for cap-subject petitions.

Want to know more? Keep on watching for more information.


We have big news regarding new changes to the H-1B visa lottery program. On January 8, 2021, the Department of Homeland Security (DHS) published a final rule in the federal register entitled, “Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject H-1B Petitions,” which will completely change the selection process for cap-subject H-1B petitions (for both regular cap and the advanced degree exemption) beginning March 9, 2021.

The purpose of the final rule is to modify the H-1B cap selection process, amend current lottery procedures, and prioritize wages to ensure H-1B visas are awarded only to the most highly skilled foreign workers according to a new wage level selection process.

It is important to note that these new changes will impact the upcoming H-1B FY 2022 visa registration cycle for cap-subject petitions, which begins in March. Transfer applications and renewals will not be impacted by this new rule.

According to the new rule, USCIS will no longer follow the randomized computer-generated selection process and will instead rely on a wage ranking system to select necessary registrations each fiscal year.

How exactly will selections be made?

Beginning March 9, 2021, DHS will change the process by which USCIS will select H-1B registrations for the filing of H-1B cap-subject petitions.

Instead of selecting registrations at random, USCIS will now rank registrations based on the highest Occupational Employment Statistics (OES) prevailing wage level offered on the petition. Preference will be given to proffered wages that equal or exceed the relevant Standard Occupational Classification (SOC) code and area of intended employment, beginning with OES wage level IV (the highest wage level) and proceeding in descending order with OES wage levels III, II, and I.

This means that USCIS will rank selections based on the highest wage level offered by the employer and prioritize selections on that basis.

Wage level rankings will occur first for the regular cap selection and then for the advanced degree exemption.

How does this process differ from the current selection system we have now?

Under the current process, each employer that is interested in filing a cap-subject H-1B petition must submit an electronic registration on behalf of each foreign worker they wish to employ. This online registration has to be submitted typically during the month of March of each fiscal year.

After the registration period ends USCIS conducts a randomized computer-generated lottery to select petitions necessary to fill the visa quotas.

At the end of the registration period, if an employer is selected, only those employers that are selected can then proceed and file an H-1B visa for the cap season.

This process is all going to change after March 9, 2021, when the new wage level selection system goes into effect.

What are some problems we foresee with this new wage selection system?

Based on these changes it seems that it will be virtually impossible for H-1B beneficiaries with wage level 1 positions (like new graduates) or even some workers with level 2 positions to be selected depending on where they are in the country.

Under these new guidelines unfortunately many applicants will no longer qualify for the program since their chances of selection will be slim.

The new program will also exclude a large pool of international students, especially those on OPT, who wish to transition to the workforce during the pandemic. These changes will block thousands of students from being able to start their first jobs in the United States.

This rule was clearly designed to give preference to highly skilled workers who will take the majority of these H-1B visas.

Startup companies, public schools, and younger medical professionals working in rural areas, will also be negatively impacted, because the majority of individuals working in these fields fall under wage level 1 or 2 which will have a lesser chance of selection.

This is going to present a whole new problem for prospective employees who want to enter the job market, but who will no longer be able to do so under the new guidelines. Currently, there are no alternative visas to help these individuals become part of our workforce.

What will happen next?

As Biden enters the Presidency on January 20th, we expect numerous lawsuits to be filed challenging the new guidelines, as well as a possible rescission of the rule by the new administration. However, the actions that Biden may ultimately take remain uncertain. There is also the possibility that the courts may issue an injunction to immediately stop the rule from being enforced.

In our view these new guidelines are very damaging to the economy and our society. Those who would otherwise bring innovation and productivity to our country will now be shut out with no opportunity for relief because no other visas are available. We hope that the Biden administration will prioritize the rescission of this rule to increase the foreign talent in our country.

Questions? If you have immigration questions and would like to schedule a consultation, please call 619-819-9204 or text 619-483-4549.

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