H-1B wage-prioritization regulation to be delayed until Dec. 31

The Department of Homeland Security (DHS) announced today that it is delaying a Trump administration H-1B wage prioritization rule until the end of the year. The agency posted a pre-publication copy of the final rule today.

Key Points:

• The rule is scheduled to be published in the Federal Register on Feb. 8 and will delay the effective date of the H-1B wage prioritization regulation until Dec. 31. DHS will accept public comments on the rule for 30 days after publication.
• The Trump administration’s rule to replace the H-1B lottery with a new selection process based on wage levels was scheduled to take effect March 9. In delaying the rule, DHS determined it would “not have adequate time to complete system development, thoroughly test the modifications, train staff, and conduct public outreach needed to ensure an effective and orderly implementation.”
• This notice confirms that the new wage-based H-1B allocation process will not be in place for the upcoming H-1B cap process.
• During the delay, the agency will evaluate the rule and policies associated with it.

BAL Analysis: This announcement confirms that for the upcoming H-1B cap season, U.S. Citizenship and Immigration Services (USCIS) will follow the same process as last year (random selection) to any registration period that takes place before Dec. 31 and employers will not be required to provide a wage level on their H-1B registrations. In the coming days, USCIS will release additional details on the upcoming H-1B cap process, including dates the electronic registration process will open.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

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