USCIS has issued a final rule that willreplace the H-1B cap lottery with a wage-based selection process. The new process selects the highest OESprevailing wage level, starting with Level IV. If there are more than 85,000 petitions filed with a Level IV wage, thenthe USCIS will hold a lottery just for the Level IV petitions. If there are fewer than 85,000 that are filedwith a Level IV wage, then the USCIS will take all petitions that are filedwith Level III wage. The process thencontinues for Level II and I, until the full allotment of 85,000 have beenselected. USCIS reserves 20,000 of the85,000 H-1B slots for master degreed holders from US universities.
The rule will take effect in 60 days, in timefor the March 2021 H-1B cap season. Theincoming Biden could theoretically place the regulation on hold. The rule could also be challenged incourt.
Because we will not know in advance how manywill be petitioned under Level IV, III, II, or I, it is impossible to know whatwage level will guarantee a chance at an H-1B slot, although a petition filedwith a Level IV wage should have a good chance of success.
Another complicatingfactor is that it is very difficult to assess how COVID and/or the economy willaffect the volume of H-1B cap petitions that will be filed this year. The USCIS received over 250,000 H-1B cappetitions in both 2019 and 2020.