The U.S. Department of Homeland Security has sent for review a proposed rule (Weighted Selection Process for Registrants and Petitioners Seeking To File Cap-Subject H-1B Petitions) regarding the H-1B lottery selection process. After the Office of Management and Budget completes its review, the next step would be for the DHS to publish the proposed rule in the Federal Register to provide notice and allow for comments from the public.
After the DHS receives and reviews the comments, it would then submit a final rule to the OMB before publishing the final rule with an effective date.
The proposed rule has not yet been published, so we do not know what it contains. However, based on proposed rules from the prior Trump Administration and other publicly available information, it seems likely that the rule will seek to eliminate the lottery process and award H-1B selections based on factors such as salary or prevailing wage data. The general expectation is that H-1B selection process would favor positions with higher wage levels.
During President Trump’s first term, his administration attempted to change the H-1B rule, but the proposed rule was vacated by the courts and then withdrawn by the Biden Administration. We expect to see court challenges to the current proposed rule once it is published.
We will continue to update this post as we learn more.
PartnerJustin represents employers in developing visa strategies that support recruiting and operational needs. He advises on temporary and permanent visa options and works closely with clients in technology, manufacturing ...
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