President Biden’s Immigration Proposal
2022 H-1B Cap Lottery to Continue to be Randomized Computer Based
Trump Policy Memorandum that Deemed ‘Computer Programmers’ to Not Qualify as a Specialty Occupation Position Rescinded
The Department of Homeland Security (DHS) has announced that the 2022 H-1B Cap Lottery will no longer be subject to allocation by wage levels as had been planned by the Trump Administration. Consequently, the rules as they currently exist will likely remain in place. This means that the H-1B Cap will be subject to a randomized computer-based lottery with 20,000 U.S. advanced degree holders to be chosen first and then 65,000 additional candidates to be chosen from a pool of the U.S. advanced degree holders (who were not chosen in the first round) and all other applicants. This lottery process provides an advantage for U.S. advanced degree holders as they could potentially be a part of both parts of the lottery. It is expected that this year, like in the previous few years, there will be more applicants than available H-1B visas.
DHS in its Final Rule on the matter announced today that the Department leadership will “evaluate the January 8th rule and its associated policies” meaning that the entire issue on wage-based allocation will be reviewed and may even be eliminated. For now it’s implementation has been delayed.
Additional measures by President Biden’s DHS to adhere to legal process has included the decision to rescind Policy Memorandum-602-0142 “Rescission of the December 22, 2000 ‘Guidance memo on H1B computer related positions,’” – a policy memorandum used by the Trump Administration on the day before the start of the 2018 H-1B Cap to eliminate the qualification of the position of Computer Programmer as a Specialty Occupation. With this rescission, companies may once again be able to file H-1B Petitions for candidates in the position of Computer Programmers. This decision by the DHS followed the Ninth Circuit Court’s decision in Innova Solutions v. Baran, No.19-16849 (9th Cir. 2020), “where the court overturned USCIS’ denial of an H-1B nonimmigrant visa petition as arbitrary and capricious.”
We will monitor this issue and update our clients as more information becomes available.
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