Restrictions on the H-1B lottery will be published tomorrow by the U.S. Department of Homeland Security (DHS).  The “midnight” regulation would be scheduled to take effect on March 9, in time for the 2022 H-1B cap season.  However, we believe that the rule is unlikely to take effect. The incoming President is expected to place the regulation on hold, and we also expect legal challenges.

The rule amends regulations governing the process by which U.S. Citizenship and Immigration Services selects H-1B registrations for filing of H-1B cap-subject petitions. Under this rule, USCIS would first select registrations (or petitions, if the registration process is suspended) generally based on the highest Occupational Employment Statistics prevailing wage level that the offered wage equals or exceeds for the relevant Standard Occupational Classification code and area(s) of intended employment.  If implemented, the rule would greatly favor higher paid occupations.

Our team will stay abreast of any changes and provide more insight as the situation unfolds.