In yet another attempt to restrict the H-1B visa program, the Department of Homeland Security (DHS) has announced that it plans to change the process by which the annual H-1B lottery is conducted so that priority is given to registrations with the highest wage levels.  In the draft rule released yesterday, DHS reasons that ranking the registrations based on wage levels provides employers the ability to improve their chance of selection by paying H-1B workers higher wages that equal or exceed the higher prevailing wage levels. 

Specifically, DHS will revise the H-1B registration form to ask which of the four prevailing wage levels is being offered to the prospective H-1B worker as provided on the OES online wage library, which is typically used to complete the Labor Condition Application (“LCA”).  A completed LCA is not required for the registration process, but the OES online wage library will need to be consulted to identify the SOC code for the occupational category and the corresponding wages in the area of intended employment.  Generally, the four levels of a prevailing wage are classified as follows:  Level 1 is entry level; Level 2 is for qualified workers; Level 3 is for experienced workers; and Level 4 is for fully competent workers.  DHS notes that in the last two years, nearly 70% of the registrations were for H-1B workers at Level 1 or Level 2 wages.  

Under the new selection process,  USCIS will sort and rank the registrations based on wage level offered, and prioritize selection of the ones with the highest wage level (Level 4). If USCIS receives more registrations at a particular level than the projected number needed to meet the annual limit, then it will run a random selection of all registrations within that particular wage level. If USCIS does not receive more registrations than H-1B visas available for that fiscal year, then all registrations will be selected.  The registration window also would remain open until the annual limit for H-1B visas is reached. 

DHS believes that salary is a reasonable measure for skill level and/or value of the worker, and the H-1B visa program should be for the most highly skilled, most valuable, and highest paid workers.  DHS also finds that the purely random selection process hurts US employers who cannot optimize their chances for selection.  

By way of background, there is an annual limit to the number of H-1B visas available.  There are approximately 65,000 H-1B visas available and an additional 20,000 H-1B visas available for individuals with a U.S. master’s degree (or higher).  Because demand for the H-1B visa usually surpasses the annual limit, USCIS opens a registration period on March 1 for three weeks.  If at the end of the three-week window it gets more registrations than the number of H-1B visas available, it runs a random lottery the last week of March.  It first selects the 65,000 H-1B visas.  Then, it pulls all the US master’s degree holders from the pool of registrations that were not selected and runs a second lottery for the 20,000 H-1B visas. 

The public will have 30 days to submit comments regarding this proposed rule once it is officially published in the Federal Registrar. The DHS has said that it will review and consider all comments before issuing a final rule.  

We will continue to monitor the situation and provide updates as more information becomes available.

This alert is for informational purposes only. If you would like to discuss this development further, please do not hesitate to contact us.