The Department of Homeland Security (DHS) published a final rule on Tuesday, December 21, officially withdrawing the H-1B Selection Final Rule. That rule was vacated by the U.S. District Court for the Northern District of California in September 2021. As a result, the upcoming H-1B selection process will not be wage-based but continue as a lottery system. This is particularly critical information as companies start the process of building their employment strategies amid ongoing labor shortages.
In January 2021, the Trump Administration published the H-1B Selection Final Rule, modifying the H-1B visa lottery and selection process for Cap-subject petitions to introduce a wage-based system. Under the Final Rule, petitions with the highest proposed wage levels would be granted first before the lower wage level registrations were considered. For example, Wage Level IV registrations would have been prioritized first. Throughout 2021, the Biden Administration has defended Trump’s final rule in court and otherwise sought to keep it intact. As President Biden campaigned on a wage-based H-1B system, his support for the rule was not altogether surprising. However, last week, it appeared that Biden Administration had a change of heart, as the government formally decided to stop defending the rule in the ongoing litigation. As the H-1B Selection Final Rule was vacated in September 2021 and the Biden Administration is no longer pursuing legal remedies to keep the rule in place, DHS has now officially withdrawn it.
This is great news, as it means the H-1B lottery will stay in place. A wage-based system would disproportionately burden small businesses, so this is greatly needed relief for the H-1B program, particularly as the country continues to recover from the economic effects of the Covid-19 pandemic.
ILBSG will continue to monitor this area and update its clients on any new developments as we head into 2022 and prepare for another H-1B lottery. As in past years, the three-week registration period will occur in March, with a selection round at the end of the month. If you have any questions about the upcoming H-1B cap, please reach out to us today. Our expert team of lawyers are here to help.