On January 7, 2021, U.S. Citizenship and Immigration Services (USCIS) published a final rule prioritizing the selection of new H-1B petitions in 2021 based on higher proffered wages.

The new rule gives priority to petitions that offer “Level IV” wages (wages around the 75th-80th percentile of local wages for the occupation) based on the Department of Labor’s Occupational Employment Statistics (OES) survey, and then gives priority in descending order to petitions offering Level III, Level II, and Level I wages. The selection of new H-1B petitions when demand exceeds the available 85,000 numbers has been by random selection, or “lottery,” for over a decade. The final rule states that random selection will happen only for petitions in the lowest wage band for which numbers are still available.

The rule is scheduled to go into effect March 9, 2021, before the FY 2022 H-1B visa lottery. However, there are several potential impediments. President-elect Biden’s inauguration will occur well before the rule’s effective date. Practitioners note that he may eliminate or delay late-breaking final rules, such as this one. Moreover, the rule could be challenged in court based on the argument that Congress mandated that H-1B visas be made available in the order in which petitions are filed, not based on wages offered.

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