A salary-based selection process takes the place of the annual H-1B cap lottery process. The final rule has been published on January 8, 2021, and will be coming into effect in 60 days. The proposal for the same had been issued by the Trump administration a few days before the US elections and public comments invited.
While the final rule has been published, it can nonetheless be rescinded by the new administration. On January 20, 2021, President-elect Joe Biden is expected to take oath as the 46th President of the United States.
Earlier, President Trump extended the H-1B ban until March 31, 2021.
Under the new rule – Modification of Registration Requirement for Petitioners Seeking To File Cap-Subject H1B Petitions – the Department of Homeland Security [DHS] is amending the process by which US Citizenship and Immigration Services [USCIS] selects H-1B registrations.
As per the final rule, “When applicable, USCIS will rank and select the registrations received generally on the basis of the highest OES wage level that the proffered wage equals or exceeds for the relevant SOC code in the area of intended employment, beginning with OES wage level IV and proceeding in descending order with OES wage levels III, II, and I.”
By the “proffered wage” is implied the wage that the US employer intends paying the H-1B beneficiary.
As per the Final Rule, rote ordering of H-1B petitions leads to impossible results as the “petitions are submitted simultaneously”.
Referring to the existing random lottery system as ‘reasonable’, the Final Rule nonetheless points out that the lottery system is “inconsiderate of Congress’s statutory purposes for the H-1B program and its administration”.
Moreover, the Final Rule lays down that the new rule will “maximize H-1B cap allocations, so that they more likely will go to the best and brightest workers; and it will disincentivize abuse of the H-1B program to fill relatively lower-paid, lower-skilled positions, which is a significant problem under the present selection system.”
The H-1B has an annual quota of 85,000. Indians constitute the biggest beneficiaries of the H-1B visas.
|While the new rule might make it challenging for US employers to hire international workers, the rule will most probably be found to be untenable by courts.
Additionally, the Congress can reverse – through a joint resolution of the 2 chambers of the Congress – any regulation within 60 days of its passage.
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