InJanuary 2021, the USCIS issueda final rule that would replace the random H-1B cap lottery with awage-based H-1B selection process. This January 2021 rule was set to go into effecton March 9, 2021 and would apply to the upcoming H-1B cap season (filed inApril 2021 for Fiscal Year 2022). However, the USCIShas delayed implementing this rule until December 31, 2021. This means thatfor the H-1B cap lottery in April 2021, even if there are multiple lotterydrawings, none of the drawings will be done under the wage-based selection process. All lottery drawings in 2021 will be random.
Thenew wage-based selection process would select the H-1Bs filed at the highestOES prevailing wage level, starting with Level IV, for the job classificationand location of employment. If there aremore than 85,000 Level IV H-1B petitions filed, then the USCIS would hold alottery just for the Level IV wage petitions. If there are fewer than 85,000 level IV wage petitions, then the USCIS wouldrun a lottery of the Level III wage petitions for the remaining H-1B spotsavailable. The wage-based selection process then continues for Level II and I,until 85,000 petitions have been selected.
TheUSCIS announced February 4, 2021 that the USCIS willdelay implementing the wage-based selection process because the USCIS doesnot have adequate time to develop and test the new wage-based selection processfor the 2021 H-1B lottery. At present, theUSCIS plans to have the rule implemented for the H-1B cap season in April 2022(Fiscal Year 2023).