Trump Administration Proposes to Scrap H-1B Lottery in Favor of Wage-Based Selections

By November 25, 2020H-1B and E-3 Visa
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The Trump administration announced H-1B rule overhaul, where the H-1B visa lottery will be eliminated and replaced with a wage-based selection.

The H-1B visa is a non-immigrant visa that permits a company to hire workers in specialty occupations.  This visa category requires that the beneficiary (the foreign worker) have a bachelor’s degree, and the petitioner (the U.S. company) can employ the worker for up to six years.  The one catch of the H-1B visa is that there is a “cap” on the number of H-1B visas that are issued each year, and this cap is often filled very quickly. The limit is 65,000 for H-1B visas, with an additional 20,000 visas available for individuals who have earned a Master’s degree or higher from a U.S. school.

Under the proposed rule, when initial H-1B visa applications subject to the annual 85,000 maximum surpass that cap visas would be awarded first to people in the highest of four prevailing wage categories, then to those in the third level, on down to the lowest level until all have been given out. In the unlikely event that fewer than 85,000 applications are received during the initial 14 day period, USCIS will continue to receive applications until the cap is reached.

The prevailing wage is the wage set for the particular occupational classification in the geographic area of employment by:

  • Union contract, or
  • the weighted average of wages paid to similarly employed workers (i.e., workers having substantially comparable jobs in the occupational classification) in the geographic area of employment).

This would mean that early-career foreign workers will be less likely to obtain H-1Bs, with visas going to those with the most experience The rule is subject to a 30-day public-comment period that will start once the proposal is published in the federal register. 

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