Guide to the Wage Based Selection of H1-B Lottery Cap

The H1B selection process could be facing many changes soon. A Trump-era policy change that was supposed to come into effect in January this year was set to convert the random lottery H1B selection process to a wage-based system. This change could have made thousands of applicants ineligible for the U.S. work visa.

However, it faces many delays with the new Democrat administration. The new administration is currently reviewing the changes and its potential impact on businesses and immigrants.

Here’s what you should know if you’re an H1B applicant.

What is Wage-Based H1B Selection?

Firstly, let’s get a quick overview of the American H1B visa.

The H1B visa is a temporary, non-immigrant work visa where a foreigner with special skills can live and work in the U.S. sponsored by a U.S. company. They can only work for that company, and can only live in the U.S. for a maximum of 6 years. However, an H1B visa holder and their dependents on an H4 visa can apply for permanent residence while they’re on an H1B visa.

Currently, the number of H1B visas issued in a year is capped at 85,000 which is assigned according to a random lottery system. However, this is in the process of being changed to a Wage-Based H1B selection process.

With these changes, the H1B selection process will then prioritize H1B applicants that fall into higher salary brackets within a wage level. This means the H1B employer sponsoring the applicant will have to be willing to offer the highest salary as stated in the Occupational Employee Statistics (OES) which is established by the occupation’s specified expected salary level in specific regions.

So a U.S. company might end up having to fork out more money to hire non-U.S. citizens, placing more value on specialized skills.

How Does the H1B Selection Process Currently Work?

How does this differ from the original H1B selection process? Before, the process would select successful H1B petitioners at random, up until they reached their yearly cap.

Here are the current requirements for an H1B visa:

• It’s only issued to non-U.S. workers who can display a special set of skills, talent, and knowledge in their chosen career.
• The company sponsoring the H1B applicant also has to prove they couldn’t fill the role with a U.S. citizen due to lack of local skill sets or qualifications, or unavailability of specialized workers.
• At a minimum, they require a Bachelor’s Degree in their field, and a section of the capped H1B visas is dedicated to applicants with Master’s Degrees from U.S. universities.

Originally, there were no hard selection criteria for applicants who already met these requirements to apply for an H1B visa in the first place.

Why is the H1B Selection Process Changing?

The H1B visa process was originally designed to attract the cream of the crop of the international workforce to come to the U.S. where the country can benefit from their expertise and talent.

However, the U.S. Citizenship and Immigration Services believe this goal isn’t being fully realized with the current random lottery system.

While applicants and their sponsors might have legally fulfilled the requirements for an H1B visa, the immigration authority says that local companies use certain loopholes to cheaply fill entry-level positions with foreign workers. This also doesn’t attract the best of the best and hinders companies’ hiring strategies.

The H1B wage-based selection process is supposed to address those concerns, while also serving in the best interest of U.S. citizens so they have more work opportunities and are not priced out by cheaper foreign labor.

How Will This Affect H1B Visa Holders?

If you’re a current H1B visa petitioner, or you’re a business in the process of hiring a foreign worker, it might be a good idea to determine which wage level you or your prospective employee falls under.

If the Biden administration has no objections to the changes it could impact the H1B lottery 2022 that’s taking place this year in April.

Those who applied for H1B cap-subject petitions will be the most affected by the changes. The changes will be applied to both the normal H1B applications and the applications that qualify for the Master’s degree exemption.

When will the Wage Based Selection Go into Effect?

As soon as the change is approved by the U.S. Department of State and they publish a final ruling, it will take 60 days to come into effect.

However, it’s likely that with delays by the Biden administration the changes might only come into effect at the end of the year in December 2021. They are busy investigating the changes and what impact they might have on immigration and U.S. companies. This also gives the public more time to submit their own comments on the changes for a fairer process.

What Happens Next?

Unfortunately, the government is allowed to approve the changes at any time so it’s important to keep an eye on it.

It’s highly likely the wage-based changes will be immediately challenged in court – especially by big tech companies – which will further delay its actual implementation. The incoming president – in this case President Joe Biden – also has the power to delay its predecessor’s changes by 60 days. This makes it even less likely to apply to this year’s lottery.

However, if there happens to be no objection to the changes and it’s published before the next lottery within the 60 days grace period, here’s what you can expect to happen:

• Applicants whose H1B job position falls under wage level 1 of the OES will be instantly rejected. Only those with wage levels 3 and 4 would be eligible under the new requirements.

• The OES will now dictate which type of jobs and their salary levels will be eligible for H1B visas and instantly disqualify anyone that doesn’t meet its requirements. It will also impact H1B workers working away from the head office as their OES level will be determined by that region instead of where their company is based.

• The ripple effect of these changes would impact many US companies forced to offer higher salaries and will diminish their willingness to hire foreign workers, reducing the talent pool that could benefit the US.

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

Conclusion

While this potential wage-based selection process may scare those most affected by its changes, the chances of this Trump-era policy being implemented is quite low due to the barriers mentioned earlier.

Just in case, double-check your wage level according to the OES and ensure all your documentation is filed correctly and with the right office.

The Biden administration is expected to roll back many of Donald Trump’s anti-immigration policies, but for now, you’ll just have to be patient and stay up-to-date with any announcements.

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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