Wage-Based H1B Lottery Cancelled

The H1B visa is known to have some strict requirements, and for the past 9 years, the H1B had a lottery system. However, not long ago, some changes were made to the system regarding the wage-based H1B lottery. It was completely eradicated by the U.S. Federal court. Why was the wage-based H1B lottery canceled, though, and what will happen from now on? Learn everything about this decision and the possible future events.

What Was the Wage-Based H1B Lottery?

The H1B visa was offered to different immigrants based on a lottery system that randomly chose people. However, things were about to change while former president Donald Trump was in charge of the U.S. The Trump administration published a final rule while they were in their last months in office. This rule was made for the H1B lottery, saying that it would be based on wage levels instead of being random.

If the wage-based lottery system would have come into effect, it would have made those with higher salaries a priority for getting H1B visas. Basically, the process of randomly choosing from 85,000 registered H1B applicants to come to the U.S. for work purposes would have been amended. That means that from that point on, the process would have prioritized employers offering higher payments to foreign workers.

Then, the new lottery, which is wage-based, would offer H1B work visas to a wage level’s highest salary. That being said, the employer would have to offer the highest wage levels based on the Occupational Employee Statistics. The prevailing wage of that particular occupation in every intended employment area would also have an effect on this.

The wage-based H1B lottery was published by the DHS back on November 2, 2020. This was all due to the Trump administration’s Buy American, Hire American Executive Order, as well as the Proclamation to suspend H1B, L1 workers. The document in its final form had around 184 pages, with over 120 pages being responses and comment summaries by DHS.

The H1B selection process was about to be changed to a wage-based one because according to the USCIS, the random selection process was not ideal for businesses.

According to them, randomly selecting immigrants to work in entry-level positions to lower the business costs overall has serious effects on the hiring process and the international workforce as a result. This process, according to USCIS, is “making it difficult for businesses to plan their hiring, and failing to compete for the best and brightest international workforce.”

So, the new wage-based process would help prioritize wages in such a way that the economic interests of workers from the U.S. are protected. Moreover, this would make sure that only foreigners who have great skills in a particular profession would come to the U.S. for work.

The wage-based selection process would have affected the 2022 H1B lottery, which took place earlier this year, in April. So, all foreigners who submitted registrations for the H1B visa would have been affected by the new process.

If the wage-based selection would have come into effect, here is how it would have affected the process:

• Employers would have to deal with a lot of financial issues, which in return would have made them unwilling to sponsor any skilled workers from abroad
• Considering that wage level 1 position do not mirror the OES prevailing wages, no such positions would have been selected. The only ones that would have been selected include wage levels 3 and 4.
• Any applicant who relies on a prevailing wage that is lower than the corresponding level 1 of the OES survey would end up falling under the “Wage Level 1 and below” category, which would get him/her disqualified
• If the beneficiary would have had to work from any third-party location or client site, only the lowest corresponding OES wage level would have been noted by USCIS in that particular area
• The process would have been challenged in courts even if it was going to come into effect

Timeline of the Proposed Wage-Based Lottery

The regulation requesting to change the H1B lottery selection to a wage-based one was published back on November 2, 2020. Then, it was expected for the final rule to be published in the first week of January, after which it would have been effective in 60 days. So, in essence, the new system would have been effective starting from March 9, 2021.

Donald Trump lost the election, though, so once President Biden and the Biden Administration took office, they delayed the process. According to them, they needed more time to look over it and make an evaluation, and also see what consequences it would have on the H1B visa.

Furthermore, delaying it helped the public think about it and comment on it. This gave a fair hearing to the proposal. If the new lottery would have come into effect earlier this year, the 2022 lottery would’ve been wage-based. The delay was implemented until December 31, 2021.

But in September 2021, there was a final judgment on the matter given by U.S. District Court Judge Jeffrey S. White. Probably one of the largest points argued in the court was the fact that Mr. Wolf, who used to be a DHS Secretary, was not serving as a DHS secretary lawfully. He was the one implementing the new rule, but since he was not appointed lawfully, it was not valid.

Therefore, all other courts confirmed that Mr. Wolf was not serving as a DHS Secretary lawfully. The current secretary of the DHS, Mayorkas, has not ratified the Final Rule yet. For this reason, the rule was canceled by the court.

So, when making this decision, the court did not exactly look into the arguments offered in the case or DHS’s justifications. It all happened around procedural aspects. It is hard to know what will happen from now on and whether the DHS would be willing to do an appeal. However, it would be difficult for them to succeed even in the case of an appeal.

Why Is the Wage-Based Lottery Cancelled?

The wage-based lottery was canceled mainly because it was a proposal made by the then Acting Secretary of the Department of Homeland Security, Chad Wolf. Mr. Wolf had no authority to issue the rule, therefore it was not valid. So, the rule was canceled in court.

What Happens Next?

Once President Biden took over The Oval office, it was only a matter of time until he did something about the wage-based process. Since the wage-based lottery was canceled, people can now apply for the H1B visa and be selected through the random lottery.

It is hard to predict if things will change later and if a new proposal will be made. The DHS may end up doing an appeal, although it would be hard for them to be successful.

Read More

• 6 Ways to Find an H1B Visa Sponsorship
• How to Change Jobs on an H1B Visa
• The Non-ECR Category: A Guide
• H1B Visa Stamping: H1B Visa Interview Documents and More
• Complete Guide to the H1B to Green Card Process
• What Are My Options for Change of Status Visa Stamping If I Am Already in America?
• Guide to the H2B Visa
• H1B Transfer: How To Change Jobs on an H1B Visa

The Bottom Line

The wage-based H1B lottery process was close to coming into effect, but it was canceled as the then DHS secretary didn’t have the authority to issue the rule. Now, people can still apply and be selected through the random lottery. It’s hard to know if this will change in the future or not.

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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