Modification of Registration Requirement for Petitioners Seeking To File Cap-Subject H-1B Petitions; Delay of Effective Date

On January 8, 2021, DHS published a final rule, Modification of Registration Requirement for Petitioners Seeking To File Cap-Subject H-1B Petitions (H-1B Selection Final Rule) amending regulations governing the process by which U.S. Citizenship and Immigration Services (USCIS) selects H-1B registrations for the filing of H-1B cap- subject petitions (or H-1B petitions for any year in which the registration requirement is suspended), by generally first selecting registrations based on the highest Occupational Employment Statistics (OES) prevailing wage level that the proffered wage equals or exceeds for the relevant Standard Occupational Classification (SOC) code and area(s) of intended employment. The Department is delaying the rule's effective date until December 31, 2021, because USCIS will 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 of the H-1B Selection Final Rule by the time the initial registration period will be open for the upcoming fiscal year (FY) 2022 H-1B cap season. During the delay, while USCIS works through the issues associated with implementation, DHS leadership will also evaluate the January 8th rule and its associated policies, as is typical of agencies at the beginning of a new Administration.