Under the final rule, DHS will largely discontinue the random, computerized H-1B cap lottery selection process and replace it with a wage-level-based allocation process.
A first allocation would distribute H-1B numbers under the 65,000 standard cap, followed by a second allocation that would distribute H-1B numbers under the 20,000 advanced degree cap.
Here’s a breakdown of how the distribution will happen:
- Allocation of H-1B quota numbers will be based on the highest OES prevailing wage level that the offered wage equals or exceeds, starting with level IV, and then continuing to select cases in descending order from OES wage levels III, II and I.
- Where an offered wage is lower than the OES wage level I because a private wage survey is used, USCIS will rank the registration in the same category as OES wage level I.
- If the beneficiary will work in multiple locations, USCIS will rank the filing according to the lowest corresponding OES wage level that the offered wage will equal or exceed.
- Where there is no available OES prevailing wage information for the offered position, USCIS will rank the filing based on the OES wage level that corresponds to the requirements of the position.
- A computerized lottery will be used if the number of registrations for a specific wage level exceeded the number of H-1B cap slots available.