I’ve written about some of this before. As some of you will recall, U.S. Citizenship and Immigration Services (“USCIS”) uses a “lottery” system to determine which employers’ petitions (who wish to hire foreign workers in “specialty occupations”) it will accept, and which it will reject. “Speciality occupations” include architects, engineers, scientists, biophysicists, biochemists, among others in the science and technology fields.
That’s right, a “lottery” system.
Each fiscal year, there are 65,000 H-1B nonimmigrant visas made available to foreign workers who are petitioned by U.S. employers, and an additional 20,000 for foreign workers who are exempt from the cap under the advanced degree exemption. The process by which USCIS selects petitions is now through an initial “registration” process, where employers pay USCIS $10.00 to register their company and the foreign national who they wish to sponsor, and then USCIS uses a “lottery” system to determine which employers will then have the privilege of filing an H-1B petition with USCIS for that specialty occupation worker.
Right after I register my clients for the lottery, I contact them and tell them, among other things, “keep your fingers crossed.” It’s not often that a lawyer counsels his or her clients to keep their fingers crossed, but that’s exactly what I do.
Last year there were 275,000 registrations for 85,000 H-1B visas (inclusive of the advanced degree exemption). That was at the onset of a pandemic. This year there will no doubt be less. The numbers have not yet been released by USCIS, but estimates are anywhere between 150,000 to 170,000 registrations were filed against the fiscal year 2022 H-1B cap.
What’s also different this year is the shadow of a proposed rule promulgated near the end of the Trump Administration which would upend decades of well-established requirements in the H-1B program. In November, 2020, USCIS published a proposed rule entitled “Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject H-1B Petitions” that will dramatically change the manner in which H-1B registrations are selected for the annual H-1B statutory cap. That is, the proposed rule seeks to replace the current lottery selection process with a new wage-based selection process which would prioritize the selection of H-1B registrations based on employers who pay the highest wages.
One can easily imagine that this rule will have a disproportionate impact on start-ups, small businesses, not-for-profits, and even rural businesses that do not have the financial resources to offer the highest wages.
It should come as no surprise that immigration lawyers and advocates are up in arms about all of this. On February 8, 2021, USCIS published a final rule delaying the effective date of the Trump Administration’s rule to December 31, 2021. In the meantime, lawsuits have been commenced. In May, 2021, five nonprofit organizations and businesses filed a complaint in U.S. District Court for the District of Columbia against DHS to enjoin the USCIS final rule. (Humane Society of New York, et al. v. Mayorkas, et al.).
All businesses who participate in the H-1B program would be impacted by this rule. DHS itself indicates that the rule would eliminate the filing of H-1B petitions for entry-level jobs, including, importantly, companies who hire recently graduated foreign nationals from U.S. colleges and universities.
The proposed rule would have USCIS selecting H-1B visa registrations based on whether the employer will be paying the highest wage to the H-1B worker relative to the four prevailing wage levels in the Occupational Employment Statistics (“OES”) classification applicable to the employer’s job. The OES’s four wage levels are, in part, dependent upon the number of years of work experience required for the offered position (e.g., from Level 1, which is “entry level”, all the way to Level 4, which is a “fully competent” worker).
The lawsuit correctly points out, however, that just because a worker might be categorized as a Level I or Level II worker does not mean that those workers are “lesser-skilled.” All H-1B positions require that the position be what is referred to as a “specialty occupation” position, which is defined as the “theoretical and practical application of a body of highly specialized knowledge” for which a bachelor’s or higher degree in a specific specialty is required, even at the Level I entry-level.
Imagine yourself as a business owner, or a startup, or an established business trying to survive as it’s coming out of this pandemic. You’ve identified a foreign national whose unique skills would greatly benefit your company. Among the many things that I would have to tell you is that not only would you have to participate in a lottery-based registration system to see whether you could even file an H-1B petition on behalf of this worker, but you also have to be prepared to pay that entry-level worker a wage for someone who might instead be a fully competent and experienced worker. No one in the real world does that.
Plain and simple, wage levels are not an indication of whether a job qualifies as a specialty occupation. In addition, the Immigration and Nationality Act (“INA”) clearly states that consideration for an H-1B visa or status “shall” be “in the order in which petitions are filed.” Nowhere in the INA does it say or suggest that H-1B petitions can be selected by skill or wage levels.
It’s now up the Courts to reach the same conclusion. My fingers are crossed.
Tags: President Biden, H-1B, DHS, USCIS, DOL, lottery, registration, cap, specialty occupation.
 INA §214(g)(3).