DHS Postpones Effective Date of Changes to H-1B Cap Selection Process to December 31, 2021

On February 4th, the Department of Homeland Security (DHS) announced in an interim final rule (IFR) that the U.S. Citizenship & Immigration Services (USCIS) final rule that radically changes the H-1B cap random selection process (the “H-1B cap lottery”) to a wage-based system will be delayed from taking effect until December 31, 2021. Accordingly, there will be no changes to the random selection process for the upcoming FY2022 H-1B cap season.

The postponement of the effective date is to provide the USCIS with sufficient time to develop, test, implement, and train staff on the necessary modifications to the online H-1B registration system that would be required for the wage-based selection process. The DHS, now led by the newly confirmed Secretary Alejandro Mayorkas, also indicated in the IFR that agency leadership will be evaluating the January 8th final rule under the Administration’s regulatory freeze on “midnight regulations.” While it is possible that the DHS will adopt the final rule’s changes to the lottery system before next year’s FY2023 H-1B cap season, we believe it is more likely that the Biden Administration will pursue such modifications through longer-term legislative means.

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