US Department of Homeland Security (DHS) has formally withdrawn the ‘H-1B Selection Final Rule’ that was published on January 8, 2021. By implementing this rule, applicants with the highest wage levels in the respective occupation category and geographic area would be given priority in the H-1B cap visa selection process.
H-1B visas are currently allocated based on a random selection process called the lottery. Following his inauguration, President Joe Biden announced that the H-1B cap selection system would be delayed until December 31, 2021. Accordingly, if the rule posts its examination was accepted by the administration, it would have come into effect for the upcoming H-1B visa selection season, starting October 1, 2022.
A number of immigration attorneys felt that this rule would negatively impact small businesses, start-ups, non-profits, rural businesses, and other industries that rely on highly skilled foreign workers but are not able to pay them at the highest wage levels. Even new international students could have difficulty getting into the US workforce through a H-1B visa. The Court of Appeals for the Northern District of California vacated this order in September, as the Times of India reported earlier. A group of plaintiffs led by the US Chamber of Commerce filed the appeal.
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DHS has formally withdrawn from the program following this court order. However, the US Department of Labour plans to move forward with its proposal to increase prevailing wage rates for H-1B and green card holders. In contrast, wages are not linked to the H-1B quotas. According to the Winter Agenda, the draft proposal should be completed by March 2022. It may take several months for a proposal to be finalized and a transition phase will likely be available.
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