Trump’s Attempt to Change the H1B Cap Selection Process

08. Jan. 2021

Although USCIS announced a new rule yesterday to change the H1B cap selection process, it is expected that the incoming Biden administration will suspend (i.e., postpone) this rule.  The new rule is current scheduled to take effect on March 8th.

Even if the Biden administration supports the new rule (very unlikely), the rule came so late with the cap selection process scheduled to begin in 2 months, that implementation would be impossible.  As such, expect the H1B cap selection process to remain unchanged from last year. 

Although not expected to take effect, a summary of the new rule: change the selection criteria so that H1B wages that meet the highest level of OES prevailing wage would have the highest priority for selection.  That is, a case with an offered wage that meets OES wage level 4 would be selected first and then selection would proceed in descending order with OES wage levels 3, 2, and 1.  Such a system would be especially detrimental to new and recent graduates who do not yet qualify for senior-level positions, which would discourage foreign students from attending U.S. universities, which would ultimately weaken U.S. companies’ competitiveness against companies abroad.