Kristina M. Hernandez
DHS Delays Wage-Based Selection Process
Today DHS issued a notice which will be published in the Federal Register on February 8th that delays the effective date of the rule “Modification of Registration Requirement for Petitioners Seeking To File Cap-Subject H-1B Petitions”. This final rule, which was supposed to go into effect right in time for this year’s H-1B cap season, is now delayed until December 31, 2021.
The notice states:
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 H- 1B Selection Final Rule by the time the initial registration period will be open for the upcoming fiscal year (FY) 2022 H-1B cap season. During the delay, while USCIS works through the issues associated with implementation, DHS leadership will also evaluate the January 8th rule and its associated policies, as is typical of agencies at the beginning of a new Administration.
Had the wage-based selection process rule gone into effect for this year’s H-1B lottery, USCIS would have ranked and selected registrations (or petitions, if the registration process were suspended) based on the highest OES prevailing wage level that the proffered wage equals or exceeds for the relevant SOC code and area of intended employment, beginning with Wage Level IV and proceeding in descending order with Wage Level III, II, and I. However, this will NOT be going into effect for this year's H-1B cap season.
Employers can now continue to work towards preparing for this year’s H-1B cap season without worrying about any major changes being implemented this year.
To view the notice from DHS, please click here: https://public-inspection.federalregister.gov/2021-02665.pdf