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USCIS’s Proposed Rule to Change H-1B Lottery Process

On November 2nd, 2020, USCIS published a proposed rule entitled “Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject H-1B Petitions” that would alter how H-1B registrations are selected for the annual H-1B statutory cap. The proposed rule replaces the current random selection process for H-1B petitions with a new wage-based selection process which would prioritize the selection of H-1B registrations based on employers who pay the highest wages.

USCIS notes, “If finalized as proposed, this new selection process would incentivize employers to offer higher wages or petition for positions requiring higher skills and higher-skilled workers instead of using the program to fill relatively lower-paid vacancies.”

Please note, this effort would only affect H-1B registrations submitted by prospective petitioners seeking to file H-1B cap-subject petitions. It would be implemented for both the H-1B regular cap and the H-1B advanced degree exemption but would not change the order of selection between the two as established by the H-1B registration requirement final rule.

If implemented, this rule will dramatically reduce access to the H-1B visa program for early-career professionals, including those who have completed Master’s or Doctoral degrees at U.S. colleges and universities. USCIS has acknowledged that if this new regulation is implemented, no individuals paid a Level 1 wage, and very few paid at a Level 2 wage, would be selected to file an H-1B petition.


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