By: Chris Musillo

USCIS has issued a final rule that will replace the H-1B cap lottery with a wage-based selection process. The new process selects the highest OES prevailing wage level, starting with Level IV. If there are more than 85,000 petitions filed with a Level IV wage, then the USCIS will hold a lottery just for the Level IV petitions. If there are fewer than 85,000 that are filed with a Level IV wage, then the USCIS will take all petitions that are filed with Level III wage. The process then continues for Level II and I, until the full allotment of 85,000 have been selected. USCIS reserves 20,000 of the 85,000 H-1B slots for master degreed holders from US universities.

The rule will take effect in 60 days, in time for the March 2021 H-1B cap season. The incoming Biden could theoretically place the regulation on hold. The rule could also be challenged in court.

Because we will not know in advance how many will be petitioned under Level IV, III, II, or I, it is impossible to know what wage level will guarantee a chance at an H-1B slot, although a petition filed with a Level IV wage should have a good chance of success.

Another complicating factor is that it is very difficult to assess how COVID and/or the economy will affect the volume of H-1B cap petitions that will be filed this year. The USCIS received over 250,000 H-1B cap petitions in both 2019 and 2020.