On January 7, The Department of Homeland Security (DHS) announced that it will modify the selection process for H-1B visa, for filing of H-1B cap-subject petitions, or petitions, if the registration process is suspended. The new system will give priority to salary and skills instead of the current lottery procedures. The final rule published in the federal register on January 8, is aimed to protect the economic interests of US workers and better ensure the most highly skilled foreign workers benefit from the temporary employment program. “This final rule maintains the effective and efficient administration of the H-1B cap selection process while providing some prospective petitioners the ability to potentially improve their chance of selection by agreeing to pay H-1B beneficiaries higher wages that equal or exceed higher prevailing wage levels.” Hence employers may have priority by paying higher wages for employees thus increasing chances of having the H-1B petition picked in the lottery.
The final rule will be effective 60 days after its publication in the Federal Register. The next H1B visa filing season is slated to start on April 1.

The current selection process involves employers/petitioners who seek to file an H-1B cap-subject petition to electronically submit a registration for each beneficiary. Once the prospective petitioner’s registration is selected, the company is then eligible to file the H-1B cap-subject petition to the USCIS during the respective filing period (90 days). Last year the total H-1B cap-subject petitions submitted totaled 201,011 (both caps) out of which 109,283 petitions were selected (Regular cap quota 68,000 and the advanced degree exemption 20,000) however the USCIS accepts additional cases due to the potential denials of other cases submitted.

The H-1B visa is a non-immigrant visa that allows US companies to employ foreign workers in specialty occupations that require theoretical or technical expertise. The technology companies depend on it to hire tens of thousands of employees each year from countries like India and China. Modifying the H-1B cap selection process will incentivize employers to offer higher salaries, and/or petition for higher-skilled positions, and establish a more certain path for businesses to achieve personnel needs and remain globally competitive. Moreover, it will maximize H-1B cap allocations, so that they more likely will go to the best and brightest workers; and it will prevent abuse of the H-1B program to fill relatively lower-paid, lower-skilled positions, which is a significant problem under the present selection system.

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