Proposed Rule Would Prioritize Higher Wages in H-1B Petition Selection Process

October 30, 2020

H-1B visas for certain high-skilled workers may be difficult to obtain under a new proposed rule by the Department of Homeland Security.  The Trump administration's plan would amend the process by which the agency selects H-1B petitions by first selecting registrations based on the highest salary levels rather than through a randomized selection process.

Junior H-1B workers at risk:  The government uses a four-tier wage structure to determine prevailing wages for H-1B workers, with level 1 being applied to entry-level talent and level 4 applied to "fully competent" workers.  The Department predicts no level 1 workers would be chosen under the new rule.  Further, 25% of those at level 2 would not be chosen.

There are significant questions as to whether the proposed rule is legal, as it appears to contradict the Immigration and Nationality Act, which states, with respect to H-1B visas, "Aliens…shall be issued visas…in the order in which petitions are filed for such visas or status.”

Outlook:  The rule comes on the heels of several other controversial rules on H-1B visas released by the Trump administration.  It is expected to likewise face a legal challenge by the business community.  A Biden administration will take a dramatically different approach to immigration issues in general, but how this would apply to H-1B and other skilled worker visas is unclear.