Yesterday, January 7, 2021, the Department of Homeland Security (DHS) released a final rule to modify the H-1B cap selection process, changing the annual H-1B visa lottery from the current randomized system to prioritize individuals with higher wages. The announcement made by USCIS claimed the intent to protect economic interests of American workers.

The rule favors individuals who register into the lottery with OES wage levels III and IV. DHS did an analysis to understand how this would have been realized in the last two year’s prior filings and determined that the following applications would have been selected: 100% of Level IV and Level III, 75% of Level II, and 0% of Level I & Below. This rule would be harmful to startups, non-profits, and any organizations that are not able to offer Level III and IV wages to employees.

We believe it is highly unlikely that this new rule will be in effect for this year’s H-1B lottery. Biden has already declared he will implement an order that stops the effective date for 60 days of any regulation announced within 30 days of the inauguration of the new President. This will bring the implementation date of the new rule past the H-1B lottery registration opening on March 1, 2021, therefore, the rule will not be in effect for this coming H-1B lottery.

For more information on the H-1B lottery and this new rule, please see Jeff’s video below or reach out to us with further questions at

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