DHS Delays H-1B Rule to Create Wage-Based Visa Allocation Process

February 05, 2021

In a victory for employers, the Department of Homeland Security said it will not implement a recently-finalized rule to create a wage-based H-1B visa allocation process for the upcoming registration season.

"The Department is delaying the rule’s effective date until December 31, 2021, because USCIS will not have adequate time to complete system development, thoroughly test the modifications, train staff, and conduct public outreach needed to ensure an effective and orderly implementation of the H1B Selection Final Rule by the time the initial registration period will be open for the upcoming fiscal year (FY) 2022 H-1B cap season," DHS said in a notice

The rule is a departure from the randomized selection process now used and threatens the ability to hire junior H-1B workers.  The Department predicts no level 1 workers (entry-level talent) would be chosen under the new rule.  Further, a significant percentage of those at level 2 (more experienced, "qualified employees") would not be chosen.  The rule applies only to H-1B quota cases, and not to H-1B amendments, extensions, or transfers. 

Outlook:  The rule has also been reopened for public comment.  The Association plans to submit comments urging the Department to make it easier, not more difficult, as this rule does, for companies to hire needed talent.