Tomorrow, January 8, 2021, the Department of Homeland Security will publish a final rule modifying the H-1B lottery ahead of Cap season, which starts in March. The rule modifies the manner in which the lottery is conducted by prioritizing applications received on the basis of the wage level of the position in relation to similar positions in the geographic area. This rule would eliminate the random selection process that has historically been used. Instead, cases that show a higher prevailing wage according to the corresponding LCA would be given preference over cases filed using lower prevailing wage levels.

 

The rule is set to go into effect 60 days from being published, which means it would apply to this year’s H-1B cap season.

 

The rule is likely to be challenged and could potentially be set aside for failure to follow the required administrative procedure for rulemaking. However, the Biden Administration has expressed support for the concept of H-1B cap allocation based on wage level, so we will be monitoring this situation closely and will provide updates as they become available.