This evening, February 24, 2021, President Biden posted his Proclamation on Ending Discriminatory Bans on Entry to The United States.  This new proclamation revokes the ones issued under the previous administration which suspended the travel and issuance of immigrant visas.  See the full text below.

“BY THE PRESIDENT OF THE UNITED STATES OF AMERICA

A PROCLAMATION
The United States was built on a foundation of religious freedom and tolerance, a principle enshrined in the United States Constitution.  Nevertheless, the previous administration enacted a number of Executive Orders and Presidential Proclamations that prevented certain individuals from entering the United States — first from primarily Muslim countries, and later, from largely African countries.  Those actions are a stain on our national conscience and are inconsistent with our long history of welcoming people of all faiths and no faith at all.Beyond contravening our values, these Executive Orders and Proclamations have undermined our national security.  They have jeopardized our global network of alliances and partnerships and are a moral blight that has dulled the power of our example the world over.  And they have separated loved ones, inflicting pain that will ripple for years to come.  They are just plain wrong.  Make no mistake, where there are threats to our Nation, we will address them.  Where there are opportunities to strengthen information-sharing with partners, we will pursue them.  And when visa applicants request entry to the United States, we will apply a rigorous, individualized vetting system.  But we will not turn our backs on our values with discriminatory bans on entry into the United States.NOW, THEREFORE, I, JOSEPH R. BIDEN JR., President of the United States, by the authority vested in me by the Constitution and the laws of the United States of America, including sections 212(f) and 215(a) of the Immigration and Nationality Act, 8 U.S.C. 1182(f) and 1185(a), hereby find that it is in the interests of the United States to revoke Executive Order 13780 of March 6, 2017 (Protecting the Nation From Foreign Terrorist Entry Into the United States), Proclamation 9645 of September 24, 2017 (Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats), Proclamation 9723 of April 10, 2018 (Maintaining Enhanced Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats), and Proclamation 9983 of January 31, 2020 (Improving Enhanced Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats).  Our national security will be enhanced by revoking the Executive Order and Proclamations.  Accordingly, I hereby proclaim:
Section 1.  Revocations.  Executive Order 13780, and Proclamations 9645, 9723, and 9983 are hereby revoked.
Sec. 2.  Resumption of Visa Processing and Clearing the Backlog of Cases in Waiver Processing.  (a)  The Secretary of State shall direct all Embassies and Consulates, consistent with applicable law and visa processing procedures, including any related to coronavirus disease 2019 (COVID-19), to resume visa processing in a manner consistent with the revocation of the Executive Order and Proclamations specified in section 1 of this proclamation.(b)  Within 45 days of the date of this proclamation, the Secretary of State shall provide to the President a report that includes the following elements:  (i)    The number of visa applicants who were being considered for a waiver of restrictions under Proclamation 9645 or 9983 on the date of this proclamation and a plan for expeditiously adjudicating their pending visa applications.(ii)   A proposal to ensure that individuals whose immigrant visa applications were denied on the basis of the suspension and restriction on entry imposed by Proclamation 9645 or 9983 may have their applications reconsidered.  This proposal shall consider whether to reopen immigrant visa applications that were denied due to the suspension and restriction on entry imposed by Proclamation 9645 or 9983, whether it is necessary to charge an additional fee to process those visa applications, and development of a plan for the Department of State to expedite consideration of those visa applications.(iii)  A plan to ensure that visa applicants are not prejudiced as a result of a previous visa denial due to the suspension and restriction on entry imposed by Proclamation 9645 or 9983 if they choose to re-apply for a visa.
Sec. 3.  Review of Information-Sharing Relationships and a Plan to Strengthen Partnerships.  Within 120 days of the date of this proclamation, the Secretary of State and the Secretary of Homeland Security, in consultation with the Director of National Intelligence, shall provide to the President a report consisting of the following elements:  (a)  A description of the current screening and vetting procedures for those seeking immigrant and nonimmigrant entry to the United States.  This should include information about any procedures put in place as a result of any of the Executive Order and Proclamations revoked in section 1 of this proclamation and should also include an evaluation of the usefulness of form DS-5535.(b)  A review of foreign government information-sharing practices vis-à-vis the United States in order to evaluate the efficacy of those practices, their contribution to processes for screening and vetting those individuals seeking entry to the United States as immigrants and nonimmigrants, and how the United States ensures the accuracy and reliability of the information provided by foreign governments.(c)  Recommendations to improve screening and vetting activities, including diplomatic efforts to improve international information-sharing, use of foreign assistance funds, where appropriate, to support capacity building for information-sharing and identity-management practices, and ways to further integrate relevant executive department and agency data into the vetting system.(d)  A review of the current use of social media identifiers in the screening and vetting process, including an assessment of whether this use has meaningfully improved screening and vetting, and recommendations in light of this assessment.
Sec. 4.  General Provisions.  (a)  Nothing in this proclamation shall be construed to impair or otherwise affect:  (i)   the authority granted by law to an executive department or agency, or the head thereof; or(ii)  the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.(b)  This proclamation shall be implemented in a manner consistent with applicable law and subject to the availability of appropriations.(c)  This proclamation is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.IN WITNESS WHEREOF, I have hereunto set my hand this twentieth day of January, in the year of our Lord two thousand twenty-one, and of the Independence of the United States of America the two hundred and forty-fifth.
JOSEPH R. BIDEN JR.”  See https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/proclamation-ending-discriminatory-bans-on-entry-to-the-united-states/.

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Alka Bahal is a Partner and the Co-Chair of the Immigration Practice of Fox Rothschild LLP, specializing in corporate immigration law and compliance.  Alka is situated in Fox Rothschild’s Morristown, New Jersey office though she practices throughout the United States and at Consulates worldwide.  You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

As anxiously awaited, USCIS has announced the initial FY2022 H-1B Cap Registration dates. Employer Electronic Registration will open on Tuesday, March 9, 2021, at 12:00 noon Eastern Time and continue through Thursday, March 25, 2021 until 12:00 noon Eastern Time.  While it’s never advisable to wait until the last minute to register, it’s especially important to note that the H-1B Cap Registration Period ends at noon on March 25th, not at the close of business nor at midnight.

Following the same procedure as was initiated last year, registrations must be electronically entered in a myUSCIS account. USCIS will charge a $10 fee per registration.  The prospective petitioner and prospective beneficiary must be indicated in the registration.  An employer will only be permitted to file an H-1B petition based on a selected registration (listing both the employer and the specific prospective beneficiary).  Beware that registering multiple times for the same beneficiary can result in disqualification.

When the registration period closes, if the number of employer registrations for the regular cap and advanced degree exemption exceed available numbers, USCIS will randomly select electronic registrations to determine which petitions may be filed.  The agency announced yesterday that it will continue to use the existing random selection process and will delay implementation of the new wage-based selection process until December 31, 2021.

After registrants have been selected, USCIS will then issue the selection notices (i.e., notify lottery winners) via the myUSCIS account, with a goal of issuing the notifications by March 31, 2021.  (Last year USCIS issued the notifications on Saturday, March 28th.)  The specific filing period dates will be indicated.

Readers should be sure to seek counsel from a qualified immigration attorney to navigate the process.

I invite you to review my prior blog posts on this and related issues and please contact me directly with inquiries at cwadhwani@foxrothschild.com or 412-394-5540.

Catherine Wadhwani is a Partner and Co-Chair of the Immigration Practice Group at Fox Rothschild LLP.  For more than 25 years, her practice has focused on business immigration law and compliance, primarily in the health care, general corporate and academic sectors.  Ms. Wadhwani’s practice covers the United States and Consulates worldwide.  She is based in our Pittsburgh, Pennsylvania office.  Please contact Ms. Wadhwani at cwadhwani@foxrothschild.com  or at 412-394-5540.

 

USCIS just announced that it will be publishing a notice in the Federal Register to delay implementation of changes to the H-1B Selection Final Rule until December 31, 2021.  If published as preliminarily announced, this will mean that the new H-1B Cap Selection process will not affect the upcoming FY2022 H-1B Cap Employer Registration selection process.  In other words, random selection will continue for any registration period that takes place before December 31, 2021.

According to today’s USCIS announcement, delayed implementation will “give USCIS more time to develop, test, and implement the modifications to the H-1B registration system and selection process. …  [and] provide more time for USCIS to train staff and perform public outreach as well as give stakeholders time to adjust to the new rule.”

By way of background, the agency published a Final Rule on January 8, 2021 to significantly change the H-1B random selection process that had been used for decades.  Under the Final Rule, preference in the H-1B Registration Selection process would be given to U.S. employers that can and will pay the highest wage to the H-1B worker (for the occupation and in the geographic area of employment).

Without the delayed implementation of the Final Rule, the new H-1B selection process would have taken effect on March 9, 2021.  This timing created many questions as to whether the new process would impact the March 2021 registration and selection process for cap-subject H-1B employers.

USCIS’s announcement is expected to appear in the Federal Register on Monday, February 8, 2021.

*Note that H-1B status is an employer-sponsored status for professional level workers.

For more information on this topic, please see my post from yesterday and earlier posts on the Fox Rothschild ImmigrationView blog at https://immigrationview.foxrothschild.com/.

Please contact me directly with questions at cwadhwani@foxrothschild.com or 412-394-5540.

Catherine Wadhwani is a Partner and Co-Chair of the Immigration Practice Group at Fox Rothschild LLP.  For more than 25 years, her practice has focused on business immigration law and compliance, primarily in the health care, general corporate and academic sectors.  Ms. Wadhwani’s practice covers the United States and Consulates worldwide.  She is based in our Pittsburgh, Pennsylvania office.  Please contact Ms. Wadhwani at cwadhwani@foxrothschild.com  or at 412-394-5540.

PLEASE SEE MY LATER POSTS ON THIS TOPIC FOR UPDATED INFORMATION.  THANK YOU.

At the time of this posting (February 3, 2021), we continue to await the final H-1B Cap registration timings from USCIS.  In addition, questions remain regarding the agency’s January 8, 2021 Final Rule that would change the H-1B Cap Registration selection process and impact the information needed from employers who want to register for the H-1B cap lottery.

In spite of this uncertainty, what should you know now to begin preparing for H-1B Cap Registration?

My law partner, Mark Harley, and I recently presented a Webinar on this topic. Highlights of the Webinar are summarized in our Podcast, which you can access on our website.

If you have questions, please let us know.  And please watch for FY 2022 H-1B cap registration updates, which are expected soon.

For background on this topic, please see my prior blog posts at:

Get Ready for H-1B Cap Season, With or Without Changes

and

https://immigrationview.foxrothschild.com/general-immigration-news-and-updates/selection-in-the-h-1b-cap-lottery-if-the-proposed-new-process-takes-effect/.

 

Catherine Wadhwani is a Partner and Co-Chair of the Immigration Practice Group at Fox Rothschild LLP.  For more than 25 years, her practice has focused on business immigration law and compliance, primarily in the health care, general corporate and academic sectors.  Ms. Wadhwani’s practice covers the United States and Consulates worldwide.  She is based in our Pittsburgh, Pennsylvania office.  Please contact Ms. Wadhwani at cwadhwani@foxrothschild.com  or at 412-394-5540.

Mr. Harley is a Partner in the Immigration Practice Group at Fox Rothschild LLP.  Mr. Harley’s practice covers the United States and Consulates worldwide.  Mr. Harley is based in our Pittsburgh, Pennsylvania office.  He can be reached at mharley@foxrothschild.com or at 412-391-2418.

Yesterday, January 20, 2021, White House Chief of Staff Ron Klain issued a memorandum regarding review of pending regulatory actions which directs, in part, that (1) all rules pending at the Federal Register that have not been published must be immediately withdrawn, and (2) agencies must “consider” postponing the effective dates for regulations that have been published, but not yet taken effect, for 60 days from the date of this memorandum.  As a result, the modified version of the Strengthening the H-1B Nonimmigrant Visa Classification Program Final Rule  (which narrowly amends its regulations to clarify how U.S. Citizenship and Immigration Services (USCIS) will determine whether there is an “employer-employee relationship” between the petitioner and the beneficiary for the purposes of qualifying as a “United States employer.”) will now be withdrawn.  This rule was sent to the Federal Register on January 15, but has not yet been published.  In addition, any final rule that has already published, but not yet taken effect may upon further agency action be postponed for until March 21, 2021, including the H-1B Wage Selection Final Rule. (which alters the methodology for selecting H-1B cap registrations from a random process to a wage based ranking process).

As the two bulletins clarifying filing requirements for LCAs by secondary employers and on H-1B program obligations for common-law employers published by the Department of Labor on January 15, 2021, rely on the finalization of the DHS Rule, it is likely that they will be withdrawn by DOL as well.

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Alka Bahal is a Partner and the Co-Chair of the Immigration Practice of Fox Rothschild LLP, specializing in corporate immigration law and compliance.  Alka is situated in Fox Rothschild’s Morristown, New Jersey office and she practices throughout the United States and at Consulates worldwide.  You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

Following up on its November announcement, last week USCIS issued a Final Rule to change the way cap-subject H-1B petitions are selected.

The Final Rule (which is unchanged from the proposed November Rule) would significantly alter the H-1B cap selection process by creating a tiered selection system. The tiered system would be based on the four OES (Occupational Employment Statistics) Wage Levels and would strongly favor employers who can pay the highest wage for the occupation in the area of employment.

USCIS has stated its plan to implement the Rule for this years’ H-1B Cap Season (FY2022).  It’s questionable, however, whether this will happen.  Various challenges are expected and will likely result in the Rule being enjoined or at least paused, so watch for updates.

Under the Rule, USCIS would again accept Employer electronic registrations for the H-1B cap.  In addition to the basic registration details required during last year’s registration, Employers would also include the “highest OES wage level that the proffered wage equals or exceeds for the relevant SOC [Standard Occupational Classification] code in the area of intended employment.”

If so many Employer registrations are received that a cap lottery is needed, USCIS would use the OES wage level information to rank the Employer Registrations. USCIS would select Employer registrations starting with Level IV, then proceed with Level III registrations, and so on until the Regular H-1B cap and the Advanced Degree Exemption are both exhausted.  Readers may recall that there are 65,000 spots in the Regular Cap and 20,000 in the Advanced Degree Exemption per fiscal year.

Historically, when a cap lottery was needed, USCIS conducted a random selection process.  This essentially gave all employers the same chance.  Random selection was used in last year’s lottery, but with a slight tweak. Instead of first selecting petitions against the Advanced Degree Exemption, USCIS first selected from all petitions under the Regular Cap.  This included those with US advanced degrees and thereby slightly increased their odds for selection.  Then, USCIS selected petitions to be counted against the advanced degree exemption.  This year’s change is much more substantial.

So, while USCIS intends to implement the change for this year’s cap selection, there is a chance that this may not happen.

Either way, if you’re an employer interested in sponsoring a foreign national professional level worker for H-1B status, it’s best to begin preparing now because the upfront analysis may require additional time prior to the limited Employer Registration window.  If the new selection system takes effect for this year’s cap, some Employers may face a reduced chance of being selected to petition for the workers they need.  As such, this year more than ever, it’s important to contact legal counsel to begin preparing as soon as possible.  Options for sponsorship other than H-1B status may be available.

Please also see my November blog post on this issue at https://immigrationview.foxrothschild.com/general-immigration-news-and-updates/selection-in-the-h-1b-cap-lottery-if-the-proposed-new-process-takes-effect/.

Please contact me directly with inquiries at cwadhwani@foxrothschild.com or 412-394-5540.

Catherine Wadhwani is a Partner and Co-Chair of the Immigration Practice Group at Fox Rothschild LLP.  For more than 25 years, her practice has focused on business immigration law and compliance, primarily in the health care, general corporate and academic sectors.  Ms. Wadhwani’s practice covers the United States and Consulates worldwide.  She is based in our Pittsburgh, Pennsylvania office.  Please contact Ms. Wadhwani at cwadhwani@foxrothschild.com  or at 412-394-5540.

 

On December 31, 2020, the President signed a Presidential Proclamation on Suspension of Entry of Immigrants and Nonimmigrants Who Continue to Present a Risk to the United States Labor Market. This proclamation extends Presidential Proclamations (P.P.) 10014 and 10052 through March 31, 2021. P.P.  10014 suspends the entry to the United States of certain immigrant visa applicants, while P.P. 10052 suspends the entry to the United States of certain nonimmigrant visa applicants who present a risk to the U.S. labor market during the economic recovery following the novel coronavirus outbreak. Specifically, the suspension in P.P. 10052 applies to applicants for H-1B, H2B, and L-1 visas; J-1 visa applicants participating in the intern, trainee, teacher, camp counselor, au pair, or summer work travel programs; and any spouses or children of covered applicants applying for H-4, L-2, or J-2 visas.

Extension of Nonimmigrant Visa Ban

Effective as of June 24, 2020, President Trump’s Proclamation 10052 suspended the entry to the U.S. of foreign nationals (with limited exceptions) holding H-1B, H-2B, J-1 and L-1 status, including dependent family members.  Originally set to expire on December 31, 2020, that same day, the President extended the Proclamation until March 31, 2021, thereby continuing restriction of travel to the U.S. and issuance of certain nonimmigrant visas.

There are limited exceptions which allow entry for H-1B/H-4, H-2B/H-4, J-1/J-2, and L-1/L-4 visa holders, including (1) individuals who held a valid visa stamp in their passport, but were outside of the U.S. on the effective date of the proclamation, and (2) individuals who possess an official travel document other than a visa (e.g., a transportation letter, an appropriate boarding foil, or an advance parole document) that was valid on the effective date of the Proclamation or issued on any date thereafter that permits him or her to travel to the United States and seek entry or admission.

Additional exceptions apply to: (3) any lawful permanent resident of the U.S., spouses or children (under the age of 21) of a U.S. citizen, (4) a foreign national that will provide temporary labor or services essential to the U.S. food supply chain, and (5) a foreign national whose entry would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.  Factors to determine whether entry is in the “national interest” include individuals who are critical to the defense, law enforcement, diplomacy, or national security, are involved with the provision of COVID-19 medical care, are involved with COVID-19 medical research, or are necessary to facilitate the immediate and continued economic recovery of the United States.

This proclamation is now in effect through March 31, 2021.

Extension of Immigrant Visa Ban

As detailed in our earlier blog post in April 2020, Proclamation 10014 suspended the entry of all intending immigrants (those seeking to enter the U.S. as a new Permanent Resident) who were outside the U.S. as of Thursday April 23, 2020, who did not already have a valid immigrant visa or a valid travel documents on that date or any date after that allows for travel to the U.S. to seek admission.

Exceptions to the prohibition to entry include (1) Permanent Residents, or green card holders, who live outside the U.S., (2) spouses and unmarried children under the age of 21 of U.S. citizens and (3) foreign nationals, their spouses, and their children under the age of 21 applying for EB-5 Immigrant Investor visas.

Additional exemptions include (4) foreign nationals (their immediate family members) who seek to become permanent residents and work as physicians, nurses, or other healthcare professionals, perform medical research or other research to combat the spread of COVID-19, or perform work “essential to combating, recovering from, or otherwise alleviating the effects of the COVID-19 outbreak”.

This proclamation is now in effect through March 31, 2021.

For additional information on the extensions of P. P. 10052 and P.P. 10014 please see the Department of State’s webpage on the Extension of Presidential Proclamations 10014 and 10052.

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Alka Bahal is a Partner and the Co-Chair of the Immigration Practice of Fox Rothschild LLP, specializing in corporate immigration law and compliance.  Alka is situated in Fox Rothschild’s Morristown, New Jersey office though she practices throughout the United States and at Consulates worldwide.  You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

In March, the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced a new temporary flexibility in complying with requirements related to Form I-9, Employment Eligibility Verification, due to COVID-19.   This temporary policy was originally scheduled to last for 60 days, however, due to ongoing pandemic conditions, USCIS extended the policy several times, most recently until December 31, 2020.  Because of ongoing precautions related to COVID-19,  on December 23, 2020 DHS extended this policy an additional 30 days until January 31, 2021.

This provision only applies to employers and workplaces that are operating remotely. See the original news release for more information on how to obtain, remotely inspect, and retain copies of the identity and employment eligibility documents to complete Section 2 of Form I-9.

E-Verify participants who meet the criteria and choose the remote inspection option should continue to follow current guidance and create cases for their new hires within three business days from the date of hire. Please see COVID-19 webpage for more information.

DHS advises that it will continue to monitor the ongoing national emergency and provide updated guidance as needed.

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Alka Bahal is a Partner and the Co-Chair of the Immigration Practice of Fox Rothschild LLP, specializing in corporate immigration law and compliance.  Alka is situated in Fox Rothschild’s Morristown, New Jersey office though she practices throughout the United States and at Consulates worldwide.  You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

We hear the reports daily.  COVID-19 cases are spiking nationwide.  Hospitals and health care facilities are at maximum capacity.  Even with progress toward the availability of a vaccine, it’s not clear exactly when things will return to a state of normalcy.  Health care employers in many areas of our country continue to have difficulty recruiting physicians to meet patient needs. With the ongoing pandemic, this is more urgent than ever.

One option that may help health care employers when a US physician cannot be recruited is J-1 Waiver sponsorship of an international medical graduate.  Barring unusual circumstances, J-1 waiver sponsorship should result in a full-time employment contract with a highly qualified international medical graduate for a period of 3 years.

For eligible employers, sponsoring a J-1 Exchange Visitor physician who is completing graduate medical education and training in the US is done by filing an application with an appropriate government agency, often a state health department.  Most employer-sponsored J-1 Waiver applications are filed by healthcare providers that are located in Health Professional Shortage Areas (HPSAs) or Medically Underserved Areas (MUAs) or that treat underserved patient populations.  This includes the Conrad 30 J-1 waiver program in which all 50 states participate.  There are also a few region-specific waiver programs such as that of ARC (Appalachian Regional Commission) and the DRA (Delta Regional Authority), and waiver applications can be filed with HHS (Health and Human Services), among other agencies.

“J-1 Waiver Season” generally begins on October 1st with the start of the federal government’s fiscal year.  A few states have already received the currently permissible 30 waiver applications per fiscal year to close out their Conrad 30 programs until next October.  Many other Conrad programs and agencies continue to accept J-1 waiver applications so if you are a health-care employer in need, it may not be too late.

Sponsorship of a foreign national physician through the J-1 Waiver process can help meet patient demand and provide consistency of care over the 3-year commitment period.  Further, during the 3-year period, the physician may become well established in an area and agree to stay beyond the 3-year commitment.  This can greatly benefit an underserved patient population and bring much-needed relief to over-burdened providers.

To learn more about sponsoring a J-1 Exchange Visitor physician for a waiver, please contact me directly with inquiries at cwadhwani@foxrothschild.com or 412-394-5540.

Catherine Wadhwani is a Partner and Co-Chair of the Immigration Practice Group at Fox Rothschild LLP.  For more than 25 years, her practice has focused on business immigration law and compliance, primarily in the health care, general corporate and academic sectors.  Ms. Wadhwani’s practice covers the United States and Consulates worldwide.  She is based in our Pittsburgh, Pennsylvania office.  Please contact Ms. Wadhwani at cwadhwani@foxrothschild.com  or at 412-394-5540.

On November 2, 2020, the Department of Homeland Security issued a Notice of Proposed Rulemaking (NPRM) announcing its plan to drastically change the way USCIS selects the H-1B Cap registrations of U.S. employers.  If the Proposed Rule is finalized in its current form and made effective, this would affect the registration selection process for employers and their prospective H-1B employees.

You may recall that for last year’s H-1B Cap Season, the agency implemented an electronic registration step that preceded the actual filing of H-1B petitions.  This change streamlined the selection process by enabling prospective H-1B petitioning employers the ability to electronically register in the H-1B cap lottery to sponsor a specific individual in lieu of filing a completely prepared H-1B petition as a means of entering the lottery.  Consistent with historical practice, USCIS then conducted a random selection lottery to determine which US employers would be able to sponsor the workers that they needed.  With such a great variety of employers registering for the H-1B Cap lottery and advanced degree exemption, random selection provided a fair chance to all.

A tweak designed to increase the selection of employers registering to sponsor those with a US master’s or higher degree reversed the order of registration selection from prior years. USCIS selected registrations first from the 65,000 regular cap, and afterward registrations under the 20,000 advanced degree exemption, tilting the odds slightly more in favor of registrations for those with advanced US degrees.

Recently, the agency issued an Interim Final Rule to change basic definitions that are central to eligibility for H-1B status. And further, the US Department of Labor issued an Interim Final Rule to significantly increase Level I, II and III wage levels by pushing up the scale within the four levels.

Nobody knows whether registrations will exceed the regular cap and advanced degree exception limits such that a lottery will be necessary in March, but if there is a lottery, USCIS is proposing a significant change to the selection process.  The agency proposes to select H-1B cap registrations with a strong preference for employers who can pay the highest Occupational Employment Statistics (OES) prevailing wage level for the job category (Standard Occupational Classification or SOC code) in the area of intended employment.

More specifically, DHS proposes to “generally” rank and select employer registrations beginning with those who offer to pay the highest wage (Level IV) for the occupation in the geographic area of employment.  In other words, lottery selection would first be made from all registrations indicating a wage offer of Level IV or higher.  If the number of such registrations would exceed the regular cap, a random selection process of only Level IV registrations would be conducted (followed by selection of advanced degree exception Level IV registrations).  Conversely, if not enough registered employers offer a wage that equals or exceeds the Level IV wage, the process of selection would continue in descending order with those offering Level III wages, then Level II and finally, Level I.

Note that under the NPRM, it is proposed that if an employer uses a wage survey or other independent authoritative wage source rather than the OES wage, regardless of any other case factors, such registrations will be grouped in Level I and have the lowest odds of selection.

The NPRM mentions consideration of an alternative selection process whereby random selection would continue–but with a twist.  The registrations would be “weighted according to their OES prevailing wage level, such that, for example, a Level IV position would have four times greater chance of selection than a level I position, a level III position would have three times greater chance for selection than a level I…” and so on.

Overall, the proposed new selection process would benefit employers who are able and willing to pay a Level IV or III wage even though the majority of employers offer a Level II wage (i.e., the NPRM notes that ~54% of registrants offered Level II wages, with ~15% combined offering Levels III and IV wages for a total of ~70% of registrants offering wages above Level I).  While the stated goal of the proposed changes is to incentivize employers to pay higher wages to H-1B workers, and this sounds great at first glance, the NPRM also notes potential downsides to employers like lost profits and increased costs in terms of training and replacement of workers, along with potential lost productivity while that takes place.

Of course, in order to implement the Proposed Rule if it becomes effective, it would be necessary for employers to include additional information in their registrations so that the ranking could be conducted.  This would require a more in-depth analysis of the case prior to registration.

All combined, more than in the past, it’s important that employers who are interested in sponsoring individuals for H-1B status contact qualified legal counsel as early as possible to allow time for a reasoned legal analysis and for potential considerations such as the use of alternative wage surveys and degree evaluations, among other things.

Please contact me directly with inquiries at cwadhwani@foxrothschild.com or 412-394-5540 with questions.

Catherine Wadhwani is a Partner and Co-Chair of the Immigration Practice Group at Fox Rothschild LLP.  For more than 25 years, her practice has focused on business immigration law and compliance, primarily in the health care, general corporate and academic sectors.  Ms. Wadhwani’s practice covers the United States and Consulates worldwide.  She is based in our Pittsburgh, Pennsylvania office.  Please contact Ms. Wadhwani at cwadhwani@foxrothschild.com  or at 412-394-5540.