What is the new rule?

The DHS has finalized a new regulation which will alter the randomly generated H-1B lottery to a system that is based on the DOL’s wage level system. Instead of a random lottery as previously done, H-1B selections will be made according to salary levels, with a priority to those salaries that are the highest in that specific occupation and specific geographic area of employment. The rule will not change the order of selection between the regular cap and the advanced degree cap.

Selection of an H-1B will be based on the highest OES (DOL’s prevailing wage source) wage level that the employee’s offered wage meets (or exceeds). For example, an employee earning the equivalent of a Level 4 wage will be given an H-1B selection first. USCIS will then continue selecting cases in descending order with the remaining OES Levels 3, 2, and 1.

However, if the number of registrations for a specific wage level exceeds the number of slots available, a computerized lottery will be held.

What if we use a private wage survey for our offered wage?

If the offered wage is based on a private wage survey and is lower than an OES Level 1 wage, USCIS will designate the registration in the same category as an OES Level 1 registration.

What if there is no available OES data for the offered position? 

If there is no OES prevailing wage data available for the offered position, USCIS will designate the registration based on the OES wage level that they think corresponds with the minimum requirements of the position.

What if the employee is working in multiple locations? 

If the employee will be working in multiple locations, USCIS will rank the registration according to the lowest corresponding OES level that the offered wage meets or exceeds.

What happens next?

The Biden Administration may place the rule on hold before it takes effect in time for the upcoming cap season. We will provide further updates on this as we receive them.