The rule would amend the process by which the DHS selects H-1B petitions by first selecting registrations based on the highest salary levels rather than through a randomized selection process.
The Department of Homeland Security predicts no level-1 workers (entry-level talent) would be chosen under the new rule. Further, a significant percentage of those at level-2 (more experienced, "qualified employees") would not be chosen. The rule applies only to H-1B quota cases, and not to H-1B amendments, extensions, or transfers.
The rule was finalized in January of this year and subsequently delayed by the Biden administration, with a new effective date of December 31, 2021.
The letter points to several significant flaws, including challenges in hiring early career professionals, such as international students graduating from U.S. colleges and universities. The measure is additionally limited by measuring seniority and tenure as the only characteristic to prioritize petitions, and fails to consider variable pay.
Senate Judiciary Chair Dick Durbin (D-IL) and Ranking Member Chuck Grassley (R-IA) sent a letter last week expressing disappointment in the delay of the rule. “The practical effect of this delay is that outsourcing companies will continue to game the lottery system and secure thousands of new H-1B visas for FY 2022 since the H-1B filing season begins in a few weeks.” HR Policy opposes the view that workers on temporary visas undermine the U.S. economy or offshore American jobs.
Outlook: Given the effective date of December 31, 2021, the rule will not impact cap-subjected H-1B petitions submitted this filing season for fiscal year 2022. In addition, the administration announced the further delay of the effective date of a separate DOL rule on wages until May 14, 2021.
