USCIS Delays Implementation of the Salary-Based Preference System for Allocating H-1B Cap Cases Until Dec. 31, 2021!!

On January 8, 2021, the Trump administration published a rule to replace the current H-1B lottery system, which allocates the 65,000 regular cap and 20,000 U.S. Master’s cap H-1B visas on a first-come basis, with a system that gives preference to those individuals being offered the highest wages. The new salary-based system would make it nearly impossible for applicants in entry level positions to get new H-1B visas.

Today, on February 4, 2021, the Biden administration announced that it would be delaying implementation of the new rule until December 31, 2021. In its statement, the administration explained that it was necessary to delay implementation of the new rule “[t]o give USCIS more time to develop, test, and implement the modifications to the H-1B registration system and selection process” and to “provide more time for USCIS to train staff and perform public outreach as well as give stakeholders time to adjust to the new rule.”

Therefore, for the upcoming H-1B cap season, USCIS will apply the current regulations and allocate new H-1B visas through a random computer-generated lottery held in March. Further, it is anticipated that the new salary-based rule may be rescinded or blocked by court order, considering that it expressly contradicts the statute, which mandates that new H-1Bs be allocated “in the order in which the petitions are filed” without consideration to the wage offered.

If you have questions about the H-1B visa, contact one of our attorneys at Minsky, McCormick & Hallagan, P.C.