Breaking Down the Proposal To Replace H1-B Lottery

Not long ago, the Department of Homeland Security released an announcement. The announcement was regarding the Notice for Proposed Rule Making (NPRM). This notice will change the selection for the H1-B petitioners. The new system was made to serve as a replacement for the random lottery selection, and it will give priority to different types of people, like those with the highest earnings in the said occupation in a certain region. But what exactly does the proposal say and what is going to happen? Here you can read all about the proposal to replace the H1-B lottery.

What Is the H1B Lottery?

People who are not too informed about the H1B visa lottery could easily misunderstand this term. This lottery is not the same type of lottery people are used to in their daily lives. You don’t need any type of ticket. This process is called a “lottery” due to the way it is performed, and once you learn about the process, you will understand.

So, what exactly is the H1-B lottery? Well, it’s a process involving the H1-B visa selection. Basically, what happens is that various people apply for an H1-B visa. But only a certain number of the applicants will be selected and succeed in obtaining a visa. There’s a required number of people that will be chosen. From this pool of applicants, people will thus be chosen to meet the 65,000 Regular quota cap and the 20,000 Masters quota cap.

Initially, this H1-B process was officially called the “computer-generated random selection process”, and that was a very long time ago, in 2007. Over time, people simply found it easier to say “lottery” rather than use all those words to describe it. Since most people embraced this name, USCIS accepted it too, which is why now they ended up saying “computer-generated process, also known as the lottery”. It’s just easier to use this term. That’s how it came to be known as the “lottery”.

What Does the New Proposal Say?

A few days ago, an announcement was made by the Trump Administration. They are planning to get rid of the lottery and replace it with a wage-based selection instead. This would change the way people knew the lottery. The administration decided to make this proposal because it’s expected to counter the pressure being put on U.S. workers’ wages.

The H1-B visa is one that many foreigners wish to obtain, as there are many people who would like to come to the United States to work. However, if the proposal is finalized, then the U.S. Citizenship and Immigration Services will do things differently. Instead of doing the random selection, it will choose petitions and registrations, and make the choice based on the highest Occupational Employment Statistics prevailing wage level.

According to the DHS, the change of the H1-B lottery system would make it easier to select people based on their interests. This also means that the administration keeps fulfilling its promise to make things better for the American worker and help make the economy stronger.  

How Does the Wage-Based Selection Process Work?

So, if things are going to change and the H1-B lottery as we know it is going to change, it’s important for all applicants and for all U.S. employers to understand the new selection process. Here is how it works:

• The DHS is going to rely upon the Occupational Employment Statistics calculation for wages in every particular geographic region. Then, it will be spread into 4 wage-levels.
• People who are looking to offer jobs to workers coming from other countries will have to offer wages over the OES levels for the H1-B visa owners.
• Only people who are H1-B beneficiaries and receive the highest wages in their respective occupation category by the petitioning employer will have priority.
• In case the wage level is not calculated based on the OES wage levels, USCIS will consider the petition a wage level I category one.
• Since the wage levels are being calculated according to the geographic region and the beneficiaries will work in multiple locations, USCIS will then adjudicate the petition depending on the lowest wage level that is being given.
• In the event that no OES prevailing wage information is available for the job profile, USCIS will consider someone’s petition according to the OES wage level that corresponds to the position requirements.
• The new process will apply to the registrations for H1-B that are submitted by petitioners who aim to file H1-B cap-subject petitions.
• This is going to apply not only to the H1-B regular cap but also to the H1-B advanced degree exemption.

Current Status of the Proposal

Now that we know all these things, it’s important to find out the current status of the proposal. The DHS proposal to replace the H1-B lottery comes after the H1-B wage increase ruling by the U.S. Department of Labor that was last implemented. This happened on October 8, 2020. The Occupational Employment Statistics prevailing wages for the H1-B program in it were increased effectively very quickly.

Basically, this process has been thought about because the biggest interest is to have all employers seek the most amazing talents they find from abroad. Not to mention that they should also pay higher wages to these people. If this happens, then it will be guaranteed that they are offered the right wage levels that will help with protecting the economic interests of U.S. workers. At the same time, it will let employers in the U.S. meet their personnel and stay competitive on a global scale.

What Happens Next?

So, now that this proposal was made, what will happen next? What are the next steps?

Well, the DHS plans to fast track the new proposal that was made in time for next year’s lottery, which is supposed to happen in March 2021. In a short time, the DHS will publish the new proposal in the Federal Register. Also, there are 30 days available during which the public can comment on the rule, as well as 60 days to comment on related forms.

When responses and feedback are offered, they will be reviewed. Furthermore, there may be some changes that will be made, and when this happens and the final version of the proposal is obtained, the final rule will be published.

It’s also important to know that the proposal might or might not be influenced by the Presidential elections. However, it is expected that many H1-B independent employers, such as the big names in the medical and tech industry, will end up opposing this ruling and then file a suit against it.

Conclusion

If the proposal ends up replacing the lottery, it will change the H1-B process as we used to know it. People will not be chosen randomly but based on wage levels. Still, we don’t know if this proposal will 100% change the process. For now, all we can do is wait and see if the Presidential elections will have an impact, and if lawsuits will be filed against it. In the meantime, keep an eye on Stilt for more useful information regarding different types of visas and other useful details.

Frank Gogol

I’m a firm believer that information is the key to financial freedom. On the Stilt Blog, I write about the complex topics — like finance, immigration, and technology — to help immigrants make the most of their lives in the U.S. Our content and brand have been featured in Forbes, TechCrunch, VentureBeat, and more.

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