2/8/2021 UPDATE: USCIS published a final rule delaying until December 31, 2021, the effective date of its final rule creating a wage-based selection process for H-1B petitions, which was originally set to become effective March 9, 2021.
Read MoreUpdate: DHS Proposes Rule Replacing Random H-1B Cap Lottery to a Wage-Based Selection System
1/7/2021 UPDATE: On January 8, 2021 the administration will publish the final version of this rule in the Federal Register and it will take effect 60 days from publication. It is possible that the legality of the rule could be challenged in Federal Court and an injunction could be put in place preventing the rule from taking force while its legality is litigated. Similarly, the rule could also be placed on hold by the incoming Biden administration, delaying or preventing its implementation.
D&S will continue to monitor both the Biden Administration’s actions with respect to this rule as well as any lawsuits filed challenging the rule and will provide updates as they become available.
Read MoreDHS Proposes Rule Replacing Random H-1B Cap Lottery to a Wage-Based Selection System
RESTRUCTURING THE H-1B LOTTERY TO A WAGE-BASIS
On October 28, 2020 the Trump Administration proposed a significant change to the process of filing cap subject petitions for H-1B nonimmigrant classification. The proposal would replace the current random selection process by which USCIS selects H-1B registrations for filing of H-1B cap-subject petitions with a system that selects registrations based on the highest Occupational Employment Statistics (OES) prevailing wage level that the proffered wage equals or exceeds for the relevant Standard Occupational Classification (SOC) code and area(s) of intended employment. The proposed rule, the full text of which is available here, was published in the Federal Register on November 2, 2020 and comments on the rule must be submitted on or before December 2, 2020.
Please note that this rule will NOT take effect until a Final Rule is published and made effective.
Read MoreDHS Publishes Final Rule on Enhancing Opportunities for H-1B1, CW-1, and E-3 Nonimmigrants and EB-1 Immigrants
Today, February 15, 2016, DHS published its Final Rule on Enhancing Opportunities for H-1B1, CW-1, and E-3 Nonimmigrants and EB-1 Immigrants. The rule, which was initially proposed by DHS in May 2014, extends the 240-day employment authorization rule to H-1B1s, E-3s, and CMNI workers, and adds a "comparable evidence" provision for outstanding professors and researchers, among other things. In doing so, these rules will provide much-needed relief to H-1B1, CW-1, and principal E-3 applicants by removing unnecessary obstacles these nonimmigrant workers face to continue working in the United States, and for EB-1 outstanding professors and researchers to seek admission as immigrants. The final rule will be effective in mid-February, 30 days from publication.
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