Updates

(December 22, 2021). DHS withdrew this final rule effective December 22, 2021. See 86 FR 72516 (December 22, 2021).

(January 18, 2022). In related news, USCIS is giving the public until February 19, 2022 to comment on revised I-129H1 form and instructions. USCIS still plans to separate Form I-129, Petition for Nonimmigrant Worker, into several individual forms, including stand-alone I-129 petitions for H-1B, TN, and O classifications. Comments on the original changes were due October 18, 2021. The new comment period is for comments on revisions to the I-129H form and instructions in response to comments from the prior notice, and the removal of elements that would have been required by the H-1B selection rule that was withdrawn on December 22, 2021. See NAFSA's page Form I-129, Petition for Nonimmigrant Worker, to be Separated into Several Individual Forms for details.

Updates prior to withdrawal of the rule:

  • (September 15, 2021). The California Northern District Court vacated the H-1B cap “highest paid” lottery rule, finding that that former acting Secretary of Homeland Security Chad Wolfe was not legally appointed to that position, and therefore had no authority to issue it. Read the decision in Chamber of Commerce of the United State of America et al v. United States Department of Homeland Security et al, Case No. 4:20-cv-07331.
  • (September 1, 2021). USCIS requested public comments on proposed revisions to the H-1B Registration Tool, that would implement the January 8, 2021 Modification of Registration Requirement rule. USCIS accepted comments on the proposed H-1B Registration Tool form until November 1, 2021. See: 86 FR 49043 (September 1, 2021), the H-1B Registration Tool comment notice, which contains instructions on submitting comments regarding the proposed form revisions; SeeH1B Registration Tool-007-REV-Screen Mockups of the proposed revised form, dated January 14, 2021 and the subject of this request for comments; Compare this to the proposed revisions dated January 8, 2021, which included questions related to the original March 9, 2021 rule. The January 14, 2021 version of the proposed form, which is the subject of the request for comments, does not contain the questions that relate to the March 9, 2021 rule. The comment notice said that "The H-1B Selection Final Rule related changes to the information collection instrument will not be implemented before that rule's new effective date, December 31, 2021."
  • (February 8, 2021). The original March 9, 2021 effective date of this January 8, 2021 final rule was postponed until December 31, 2021, through a final rule published at 86 FR 8543 (February 8, 2021). For the FY 2022 H-1B cap season, "USCIS will apply the current regulations (random selection)" to any H-1B cap registration period that takes place before December 31, 2021.

Summary of the Rule

DHS withdrew this final rule effective December 22, 2021. See 86 FR 72516 (December 22, 2021). This summary is maintained for research and reference purposes only.

A USCIS final rule titled Modification of Registration Requirement for Petitioners Seeking To File Cap-Subject H-1B Petitions, published on January 8, 2021, would have modified how USCIS managed the H-1B cap-subject registration requirement "by generally first selecting registrations based on the highest Occupational Employment Statistics (OES) prevailing wage level that the proffered wage equals or exceeds for the relevant Standard Occupational Classification (SOC) code and area(s) of intended employment." The rule would have replaced the current random selection process for H-1B cap-subject registrations with a system that gave preference to higher wage earners.

DHS had proposed this rule on November 2, 2020. NAFSA participated in the public comment process, signing on to the following comment letters: