USCIS to Select H-1Bs Based on Offered Wage

The Department of Homeland Security (DHS) has published a new final rule substituting last year’s random selection registration process with one based on the wage offered the worker with those cases with higher wages being more likely to be chosen.

The rule will take effect on March 9, 2021, but the incoming Biden Administration has stated it will issue an order on January 20 delaying implementation regulations issued since the November election that have not yet taken effect.

In addition, this rule will almost certainly be challenged in federal court by those seeking an injunction that would delay its implementation.

The new rule requires registration requests (submitted in March) to be chosen based on the highest prevailing wage level that the offered wage equals or exceeds for the relevant occupation and area(s) of proposed employment.

For example if the offered salary for an Electrical Engineer is $70,000.00 and it meets or exceeds Prevailing Wage Level II for the place of employment, the registration request will be classified, for selection purposes, as a Level II case.

The rule will not change the order in which the USCIS selects regular and masters cap registration requests. The prevailing wage level ranking will precede both selection processes.

Assuming more registration requests are received than there are H-1B “slots” (which is very, very likely to happen) the USCIS will sort and choose the requests from the highest wage level to the lowest (from Wage Level IV to Level I) (with the USCIS acknowledging virtually no Level I requests will be selected).

To accommodate these changes, DHS has proposed changes to the H-1B registration system and USCIS Form I-129 that would mandate petitioners state the highest wage level that the proffered wage meets or exceeds.

In addition, if the USCIS concludes an employer has tried to reduce the employee’s salary by filing another application it can revoke the first approval and deny the second.  This is apparently an attempt to prevent employers from indicating a higher wage in the registration process to increase chances of selection.

We will continue to report on this ongoing issue.

For more information, please contact James Aldrich (248-203-0583 or JAldrich@dykema.com) or your regular Dykema contact.