Employers May Have Better Shot at H-1B Visas by Offering Higher Wages

It’s H-1B registration season, and offering higher wages could get you to the top of this year’s list. The Department of Homeland Security changed how U.S. Citizenship and Immigration Services (USCIS) selects registrations for H-1B cap-subject petitions. Generally, USCIS will first pick registrations based on the highest Occupational Employment Statistics (OES) wage level that an employer offers for the job. This means U.S. employers can improve their chances of visa selection by offering higher wages to professionals hired to work in H-1B status.   

The government is still finalizing the rules for this year’s H-1B visa selection process. But in general, employers who want to file an H-1B cap-subject petition must first submit an online registration for each employee on whose behalf they seek to file the petition, unless USCIS suspends this requirement. Once selected, the employer can file a petition for the chosen registration during the associated filing period. 

In the past, USCIS would monitor the number of H-1B registrations it received during the announced registration period. At the end of that period, the government would randomly select the number of registrations projected as needed to reach the annual H-1B cap. USCIS would first select registrations from all filings to meet the standard quota. USCIS would then pick from the remaining advanced degree registrations until it reached the advanced degree exemption cap. Chosen employers could file an H-1B cap-subject petition for the beneficiary named in the selected registration within a certain time period. This process likely will still apply, but now it will favor employers who offer higher wages to H-1B professionals.

USCIS believes a registration system that prioritizes selection based on wage levels will:

• Incentivize H-1B employers to offer higher wages or to petition for jobs that require higher skills and higher-skilled workers commensurate with higher wages
• Maximize H-1B cap allocations, so they’re more likely to go to the best and brightest workers

Accordingly, USCIS presently plans to rank and select the registrations starting with OES wage level IV and ending with OES wage level I. These changes also apply to registrations for advanced degree exemptions, but they will not affect the order of selection between the regular cap and the exemption. Rather, the wage-level ranking will occur first for the regular cap selection and then for the advanced degree exemption.

This final rule is scheduled to go into effect March 9, but it may be scrapped by the incoming Biden administration. Please contact Brandon Davis or Laura Buck of Phelps’ Immigration team if you have questions or need compliance advice or guidance.