On Thursday, USCIS announced the final rule that will modify the H-1B cap selection process and amend current lottery procedures, relying on wage levels to select petitions for the temporary employment program. USCIS claims that modifying the H-1B cap selection process will incentivize employers to offer higher salaries, and/or petition for higher-skilled positions. However, the government’s legal basis for making such changes is tenuous, at best.
The final rule will be effective 60 days after its publication in the Federal Register, on March 9, 2021; challenges are expected. Most immediately, the new Biden Administration could delay the rule’s effective date, and pursue the rescission process under the Administrative Procedures Act. In addition, litigation is all but assured, as the rule was issued under the tenure of Chad Wolf, who courts have found is not lawfully exercising the powers of the Secretary of Homeland Security, and because the Department lacks legal authorization to make such changes under the statute.
To implement the rule, USCIS would be required to reprogram the H-1B Registration website that launched in 2020; given the time frame involved this, too, is likely to be a challenge. When the H-1B Registration program was first implemented in 2019, the re-vamped process of conducting the lottery had to be delayed a year while the website issues were worked out.
Goldblum & Pollins will continue to provide updates on the status of the new regulation and its impact on the current year’s cap-subject H-1B selection process.