H-1B Lottery Will Continue to be Based on Random Selection

The former Trump administration proposed a rule that would change the system how H-1B visa applicants were selected in the lottery system: under this rule that was proposed in 2020, the cases would be selected based on wage level (the higher the wage, the bigger your chance of selection would be).

There are a limited number of H-1B petitions that USCIS can adjudicate every year (65,000 Regular Cap petitions and additional 20,000 U.S. Advanced Degree Petitions). Every year, more H-1B registrations than these congressionally mandated amounts are submitted (for example, last year over 275,000 H-1B registrations were submitted) and therefore, the government has to run an H-1B lottery and select 65,000 Regular Cap Petitions & 20,000 U.S. Advanced Degree Petitions. This is called an H-1B lottery.

Currently, the H1b employers have to file what is called an H-1B registration. This is usually filed in March of each year. After all registrations are received, USCIS will run a lottery and randomly select 65,000 applicants under the regular cap and 20,000 applicants under the Master’s cap. Wage is not a factor the lottery system considers and the selection is completely random.

In 2020, the Department of Homeland Security proposed an amendment to the H1b process: the registrations that would have the highest prevailing wage would be selected first (there are 4 wage levels the H1b employer can pay the employee and the highest wage is Level 4). Under this proposed rule, the employees that were offered wage 4 would have the highest chance to be selected and the applicants with wage level 1 would have the lowest chance. The rule was widely criticized as it would be almost impossible for especially recent graduates to ever be selected in this lottery, as recent graduates are almost never immediately after school offered wage level 4.

On September 15, 2021, a US District Judge Jeffrey White ruled that this proposed rule has to be set aside as the secretary who promulgated this role was not serving as acting secretary when the rule was promulgated. Because of this and because the current secretary Mayorkas has not ratified this rule, the judge concluded that the rule must be set aside.

This is a great news for all H-1B visa applicants and especially all recent graduates (including graduates from US universities) and all other applicants whose chance to be selected under the new system due to lower wage would be extremely low.