US to modify H-1B visa selection process

"Modifying the selection process will incentivize employers to offer higher salaries, and/or petition for higher-skilled positions, and establish a more certain path for businesses to achieve personnel needs and remain globally competitive," US Citizenship and Immigration Services said.

The final rule will be effective 60 days after its publication. The next H-1B visa filing season is slated to start on April 1.

"The visa program has been exploited by employers primarily seeking to fill entry-level positions and reduce overall business costs," said USCIS Deputy Director for Policy, Joseph Edlow.

The random process makes it difficult for businesses to plan their hiring, fails to bring in the best international workforce, and has resulted in the influx of foreign labor placed in low-wage positions at US workers' expense.

This effort will only affect H-1B registrations (or petitions, if the registration process is suspended) submitted by prospective petitioners seeking to file H-1B cap-subject petitions.

"It will be implemented for both the H-1B regular cap and the H-1B advanced degree exemption, but it will not change the order of selection between the two as established by the H-1B registration final rule," USCIS said.

The Department of Homeland Security had previously published a notice of proposed rulemaking on November 2, 2020.

It carefully considered the public comments received before deciding to publish the proposed regulations as a final rule, USCIS said.

While administering a random lottery system is reasonable, it is inconsiderate of Congress's statutory purposes for the H-1B program and its administration, said the final rule.

The changes will apply to all registrations, including the advanced degree exemption, submitted on or after the effective date of the final rule.

As per the Congressional-mandated cap, USCIS in one year can issue a maximum of 65,000 H-1B visas. It can also issue another 20,000 H-1B visas to those foreign students who have completed higher studies from a US university in STEM subjects.

The department said that during the public notice period several commenters expressed support for the rule and the need to stop visa fraud by certain staffing or consulting companies.

One said that it is beneficial for US citizens by making it harder for technology companies to discriminate against them.

Another said the proposed rule is necessary because Indian corporations are acquiring US jobs.