Key Points
  • DHS has introduced a new rule to change the H-1B lottery to a wage-based selection process
  • DHS intends to eliminate the current lottery-based selection process to prioritize higher earners
  • The announcement follows recent changes to the H-1B program in October 2020
  • The proposed rule is part of the Trump Administration’s plan to protect American jobs
  • The rule would apply to the regular H-1B cap and the H-1B advanced degree exemption
Overview

On October 28, 2020, the Department of Homeland Security (DHS) announced plans to change the H-1B selection process from a lottery system to a wage-based selection process. The new rule is designed to prioritize H-1B applicants with higher salaries.

Background

The agency’s proposed amendment to the H-1B visa selection process is part of the Trump Administration’s broader plan to protect American workers. The latest announcement follows recent changes to the H-1B program implemented earlier in October 2020, including minimum wage increases and additional restrictions for businesses on hiring H-1B workers.

What are the Changes?

DHS intends to modify the H-1B cap selection process by replacing the random selection process with a new wage-based selection process. Under the new rule, the program will prioritize H-1B applicants with higher salaries. It will also create an incentive for employers to offer higher wages to their employees, require higher skills, and employ higher-skilled workers rather than hiring H-1B applicants for lower-paid positions. If implemented, the program changes will further the Trump Administration’s intention of hiring the “best and brightest” foreign workers through the H-1B program.

Who is Affected?

The rule would apply to H-1B registrations submitted by prospective petitioners looking to file H-1B cap-subject petitions. The changes would impact the H-1B regular cap and the H-1B advanced degree exemption.

Looking Ahead

A 30-day public comment period will begin when the rule is published in the Federal Register. DHS will review and consider all submitted comments before issuing a final rule.


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