H-1B Lottery System To Remain Unchanged for 2021

Written by: Ashik R. Jahan, Esq.

On Jan. 7, US Citizenship & Immigration Services (USCIS) announced the H-1B Selection final rule, which amended the regulations governing the process by which USCIS selects H-1B registrations for the filing of H-1B cap-subject petitions. In short, under the Trump Administration, the H-1B lottery system would be modified to now favor those with higher wages.

However, under the new Biden Administration, it was determined that USCIS needed more time to develop, test, and implement the modifications to the H-1B registration system and selection process.  As a result, the Dept. of Homeland Security (DHS) is delaying the effective date of this final rule from March 9, 2021, to Dec. 31, 2021. The delay will also provide more time for USCIS to train staff and perform public outreach as well as give stakeholders time to comment on the new rule.

As a result, for the upcoming H-1B cap season, USCIS will apply the current regulations (random selection), the same process that was in place last year, to any H-1B registration period that takes place before Dec. 31, 2021. Consequently, employers can now be ensured that the H-1B lottery will not be drastically changed for the second time in as many years. It remains to be seen whether the wage level lottery system will be scrapped all together or whether any other changes will be forthcoming for the H-1B visa in 2022 under the new administration.


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