H-1B Lottery unlikely to be impacted by the New Rule

There are two published Final Rules released during the waning days of the Trump administration that would only allow high salary H-1B workers to be employed in the U.S.

Below is a summary breakdown of the new rules and effective dates:

1. Final Rule on increasing H-1B wages (issued on January 14, 2021). Effective date: March 15, 2021. This is basically an amended version of similar rule that took effect on October 8, 2020 which was ultimately struck down by court.

2. Final Rule on Creating Wage-Based Selection System for Cap-Subject H-1B Petitions (issued on January 8, 2021). Effective date: March 8, 2021. This rule would increase lottery selection probability to those with high salary offers.

As of January 20, 2021, Chief of Staff, Ron Klain, issued memo to postpone all “midnight regulations” including the above rules for 60 days. What many failed to see is that the language in the memo directs “postponing the rules’ effective dates for 60 days from the date of [the] memorandum” (not from regulation’s effective date). https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/regulatory-freeze-pending-review/

What that means is that the two rules are only delayed until March 21, 2021. However, implementing a new lottery based on the new rule is unlikely because timing would be extremely tight, if not impossible as the regulations require that the registration period begin at least 14 calendar days before the earliest date on which H-1B cap-subject petitions may be filed for a particular fiscal year, and last a minimum of 14 calendar days. If the earliest date for filing cap-subject H-1Bs is April 1, 2021, then the initial registration period should be open no later than March 18, 2021, which seems like an impossible feat given the new rule is postponed until March 21, 2021. 

Update on January 29, 2021: The DOL has decided further delayed the Final Rule on increasing H-1B wage to May 14, 2021.