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Wage-Based H-1B Selection To Replace Random Computerized Lottery

The DHS published a Final Rule this morning that prioritizes the selection of H-1B registrations based on employers who pay the highest wages, replacing the current random selection process with a new wage-based selection process.


Under the final rule, the H-1B selection will prioritize the highest OES prevailing wage level, starting with the highest wage level IV, and then continuing to select cases in descending order from OES wage levels III, II and I. This means that within the same geographic area, petitions with higher wage levels have better chance of being selected.


This rule will be implemented in early March – 60 days from today – and it will affect the cap H-1B selection this year. The online registration form will be revised accordingly, and during the registration process employer will be required to enter the OES wage information for each H-1B registration.


It is uncertain if this rule will be implemented as planned. Although President-elect Joe Biden has expressed his support for the H-1B selection based on wage levels, the Biden Administration still might put this rule on hold or make some changes. Or, there might be lawsuits filed against this rule in federal courts.


If this rule eventually takes effect in March, we will update you with the USCIS instructions on the registration process for this year.

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