DHS Changes The H-1B Visa Cap Selection Process

Written by Taher Kameli & Chathan Vemuri

In one of the final acts of the Trump Administration’s hardline anti-immigration policies prior to his departure on January 20, 2021, the Trump-led Department of Homeland Security issued a final rule that upends the traditional selection system for the H-1B visa in favor of highly paid workers, at the expense of those who make less.[1] Every fiscal year, the numerical limit on the number of foreign workers authorized for H-1B visa status is capped at 65,000 initial visas, with an additional 20,000 H-1B visas for workers with advanced US degrees.[2] But given the disproportionately higher demand for H-1B visas, a random lottery process has been used to limit the number of applicants.[3]

However, under the new rule, the “’USCIS will rank and select registrations’ based on ‘the highest corresponding Occupational Employment Statistics (OES) wage level that the proffered wage will equal or exceed for the relevant Standard Occupational Classification (SOC) code and area(s) of intended employment.’”[4] As a result, the Final Rule would set preferences for highly paid H-1B workers for the purposes of sponsorship, while applications for wage levels lower than that would be not as likely chosen for H-1B status.[5] In order to determine who qualifies under the new rule, the USCIS will look the selected wage…