DHS Will Maintain H-1B Lottery System Through 2021
US Citizenship & Immigration Services announced on Thursday that it will not adopt a new wage-based approach to vetting H-1B specialty work visa applications next month as scheduled, saying it needed more time to prepare the more complex system.
The eight weeks between the publication of the final rule on Jan. 8 and its planned effective date on March 9 did not leave USCIS, a branch of the US DHS enough time to set up, review and train employees on the new protocols required by the regulation, according to a Federal Register notice.
Instead, the agency said it will stick to the current lottery system for H-1B selections through Dec. 31.
“Given the longer delay, USCIS expects that it will select from among all of the registrations properly submitted toward the FY 2022 H-1B numerical allocations based on the current (random selection) regulations that will be in effect when USCIS first begins accepting registrations or petitions toward the FY 2022 numerical allocations,” the notice says.
Under the current system, applicants vie for 65,000 H-1B visas each year, with another 20,000 reserved for individuals with master’s degrees or higher from U.S. institutions. Last year, approximately 275,000 candidates competed for the limited number of visas.
H-1B visas allow workers to stay in the U.S. for up to three, or in some cases, six years and bring immediate family members with them. They also provide a pathway to permanent U.S. residency.
The program came under fire from the Trump administration for allegedly discouraging employers from hiring U.S. workers and driving down wages.
Under the delayed rule, USCIS would have prioritized H-1B applications based on their salaries, with the workers offered the highest pay moving to the front of the line.
USCIS said that the change would require it to develop a new registration tool based on a new algorithm in its Thursday notice.
“The publication date of the final rule only affords six weeks of development time, and less than two weeks to complete internal end-to-end testing and external performance testing with DHS OneNet, the DHS network,” the agency said. “In light of these technical challenges, DHS now believes that there is not adequate time to develop and thoroughly test the new H-1B registration system.”
Stephen Yale-Loehr, immigration law professor at Cornell Law School called the announcement good news for employers and potential H-1B workers — particularly junior-level applicants — in a statement Thursday.
“It gives them reassurance that the normal H-1B lottery rules apply again this year. It also means that new graduates have an equal shot this year in being selected for the H-1B lottery. By contrast, if the Trump lottery rule had applied, it is likely that no entry-level applicants would have been selected this year,” Yale-Loehr told Law360.
The agency did not commit itself to implementing the new rule next year, either.
“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,” USCIS said.
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