Here’s another edition of “Dear Sophie,” the advice column that answers immigration-related questions about working at technology companies.
“Your questions are vital to the spread of knowledge that allows people all over the world to rise above borders and pursue their dreams,” says Sophie Alcorn, a Silicon Valley immigration attorney. “Whether you’re in people ops, a founder or seeking a job in Silicon Valley, I would love to answer your questions in my next column.”
I heard the randomness of the H-1B lottery is going away. What will this mean for our startup’s ability to get an H-1B visa for one of our co-founders?
— Curious in Cupertino
Lots going on in immigration this week (as usual!). First, good news for green card applicants: the November 2020 Visa Bulletin did not change from October, when the dates for filing for Adjustment of Status sped up significantly for individuals born in India and China.
About the H-1B lottery: The Department of Homeland Security (DHS), which oversees U.S. Citizenship and Immigration Services (USCIS), this week proposed a rule that ends the random H-1B lottery; instead, USCIS will determine who can apply for an H-1B visa based on the highest salary. DHS says this change will “incentivize employers to offer higher wages.”
The number of H-1B visas issued each year is capped at 85,000. Currently, when demand for H-1Bs outstrips the annual supply, which has been the case since 2013, USCIS uses an electronic random lottery to determine who can apply for an H-1B. For the first time this year, sponsoring companies electronically registered each H-1B candidate for the lottery in March.
USCIS first selects enough registrants to reach the 65,000 cap for individuals with a bachelor’s or higher degree and then selects registrants to reach the 20,000 cap for those with a master’s or higher degree. Based on this proposed regulation, USCIS would now determine who can apply for an H-1B based on ranking and selecting the candidates that are being offered the highest salaries.
Employers who sponsor an H-1B candidate must pay the higher of either the actual wage paid to U.S. workers in a comparable position or the prevailing wage rate for occupations based on the location where the work will be performed. Prevailing wages are broken down into four levels based on experience, with Level 1 being an entry-level position and Level 4 being the most experienced.
USCIS will now select registrations with a Level 4 wage or above and then proceed to Level 3, and so on. DHS estimates that H-1B registrations offering a Level 1 wage will never be selected as long as the number of H-1B registrations exceeds the 85,000 cap. That means recent graduates, as well as doctors, scientists, researchers and other professionals who are early on in their careers will have a very low chance of getting an H-1B unless they can qualify for Level 2 or higher duties and salaries.
Under the first-round selection process for H-1B candidates with a bachelor’s degree or higher, DHS estimates that registrations offering a Level 4 or Level 3 wage would all be selected under the new rule, and 75% of registrations offering Level 2 wages would be selected. Under the second-round process for candidates with a master’s degree or higher, DHS estimates all registrations offering a Level 4 or Level 3 would be selected while just 20% of Level 2 would be selected.
This new DHS proposal coupled with a Department of Labor rule that significantly raised the prevailing wage rates will make hiring an H-1B candidate a much more expensive proposition for employers, which will substantially impact startups and small businesses. DHS estimates the additional opportunity cost of time to employers who will be required to provide salaries when registering H-1B candidates will be nearly $11.8 million.
This proposal is expected to be published in the Federal Register on November 2, and DHS will accept comments from the public on this proposal for 30 days after that. The outcome of the election and an expected legal challenge may decide whether this proposal becomes a reality, as part of the Biden platform includes rolling back all Trump-era immigration regulations.
We’ll keep an eye on it!
Have a question? Ask it here. We reserve the right to edit your submission for clarity and/or space. The information provided in “Dear Sophie” is general information and not legal advice. For more information on the limitations of “Dear Sophie,” please view our full disclaimer here. You can contact Sophie directly at Alcorn Immigration Law.