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Immigration Law

H-1B Final Rule & Important Commentary

Federal Register / Vol. 86, No. 5 / Friday, January 8, 2021

"The Department of Homeland Security (DHS or the Department) is amending its regulations governing the process by which U.S. Citizenship and Immigration Services (USCIS) selects H-1B registrations for the filing of H-1B cap-subject petitions (or H-1B petitions for any year in which the registration requirement is suspended), by generally first selecting registrations based on the highest Occupational Employment Statistics (OES) prevailing wage level that the proffered wage equals or exceeds for the relevant Standard Occupational Classification (SOC) code and area(s) of intended employment. DATES: This final rule is effective March 9, 2021."

[See this important commentary from William Stock @wstock215: "Wow, @USCIS is moving forward with publication of a final rule for new #H1B petitions in 2021, giving priority to those petitions filed that offer "Level IV" (highest) wages per @USDOL OES survey, and proceeding to Level III, Level II and Level I until the numbers run out. The "random selection" will only happen with petitions in the same wage band: if there are fewer than ~100K petitions in Level IV and III, but more in Level II than are left, then the lottery will be only among those in Level II (& Level I will be rejected). Rule is effective in 60 days (so before this year's lottery in March) but will require re-programming the registration website to collect LCA data for it to work. BUT this rule may never go into effect: in 13 days, Joe Biden will be inaugurated and one of his first acts will be to delay the effective date of any final rule that has not yet gone into effect for 60+ days, which will include this rule. It will likely then be quietly withdrawn. ... Bonus: this rule relies for legal authority on an "ambiguity" in the statutory language that just doesn't exist. DHS leans *very* heavily on a 2017 District Court case [[Walker Macy v. USCIS, 243 F.Supp.3d 1156, 1176 (D. Or. 2017)]] & says it upheld their discretion to do whatever they want when more cases are filed than visas are available. That case asked DHS to make a list of applicants in the order of filing & carry it over yr to yr; DHS decided on the annual lottery instead. The court said that decision was reasonable and within DHS's discretion. Had nothing to do with imposing new criteria like wage level."]