H-1B Selection Process Altered to Focus on Wages

Jan 8, 2021

by Kristine Nazir

The U.S. Citizenship and Immigration Services (USCIS) announced its final rule altering the existing H-1B Cap selection process.   The final rule will replace the current random selection process with a new salary-based ranking system.

  • In lieu of a random lottery, USCIS would rank the cap registrations based on prevailing wage levels, first selecting registrations that meet highest prevailing wages and proceeding in descending order.
  • It will be implemented for both the H-1B regular cap and the H-1B advanced degree exemption, but will not impact the order of selection between the two.
  • The final rule will be published in the Federal Register on Friday, January 8, 2021, and become effective 60 days thereafter.
  • If you would like to read the announcement from USCIS regarding the final rule, please click here.

Due to the nature of the final regulation, it is likely that the regulation will be challenged in litigation. It is unclear what the Biden administration’s position will be regarding the final rule.

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Immigration  ““ The Firm represents businesses, institutions of higher learning, and individuals with respect to immigration-related matters, including obtaining visitor visas, temporary and permanent work visas, consular processing of visas, obtaining citizenship, advising employers on employment sanctions issues, and defending employers faced with INS I-9 audits and investigations.

Kristine Nazir represents corporations and institutions of higher education with their immigration needs, including obtaining temporary and permanent visas, handling employer sanctions issues, I-9 and E-Verify employment eligibility verification compliance, consular processing, and naturalization.   Prior to joining the firm, Kristine clerked for the Honorable Jeffrey M. Geller at the Baltimore City Circuit Court and for the Department of Justice, Executive Office for Immigration Review at the Arlington Immigration Court. During law school, Kristine interned with the Department of Homeland Security, Immigration and Customs Enforcement, Office of the Principal Legal Advisor and National Security Law Section; the Superior Court of the District of Columbia; and Fragomen, Del Rey, Bernsen, & Loewy LLP. Before attending law school, Kristine also served in Peace Corps Mongolia as a community economic development volunteer.

Diane Metzger practices in the areas of immigration law and employment law.   From large multi-national employers to small employers who have no prior experience with our nations”™ complex immigration laws, Ms. Metzger represents and provides counsel to clients with a wide range of business immigration needs, including but not limited to obtaining non-immigrant visas (e.g. H-1B, L-1, TN, E, O); applying for permanent residency (e.g., PERM, Schedule A, EB-1); navigating the naturalization process; consular processing and other applications made directly with the U.S. Department of State; out-bound immigration matters when U.S. employees are transferred abroad; and family-based immigration through U.S. citizen relatives.

Ms. Metzger also assists corporate clients with preventive advice and counsel, including advice on immigration-related corporate reorganization issues and corporate compliance & due-diligence matters including, I-9s, E-Verify, and immigration-related audits.   Ms. Metzger regularly provides training to her clients.

Melanie Gurley Keeney practices in the areas of employment, immigration and education law. Melanie has been included in Best Lawyers in America ® for 25 years, and has been recognized in all areas of her practice. She also has been named to Missouri & Kansas Super Lawyers ® lists for over 10 years, and has been rated one of the top 50 female lawyers in Missouri and Kansas. She was named a “Top Missouri Lawyer” by St. Louis Magazine and Kansas City Magazine for Immigration Law. Melanie has been distinguished as Best Lawyers ®    St. Louis Immigration Law Lawyer of the Year in 2019, 2015, and 2012, and St. Louis Education Law Lawyer of the year in 2017. In 2016, Missouri Lawyers Weekly presented Melanie with the Women’s Justice Litigation Practitioner Award and in 2014, Washington University School of Law honored Melanie with the International Women’s Day Award for Employment Law. She has served as an adjunct professor at Washington University and is a frequent presenter on legal topics. Melanie is a founding Shareholder of the Firm and currently serves as the Chairperson of the Firm.