H-1B Visas: What’s new? What’s next? Updates for 2021

An animated image of a person holding a H-1B visa with the Statue of Liberty in the background.


A large portion of our clientele rely on our services to aid them with their H-1B visas and applications for permanent residence through employment. You, reader, may in fact be one of them. So what has been happening regarding H-1Bs during Trump’s reign over America, and what differences will we see now that we have a new leader with Joe Biden? All good questions, and we’ll get to them here, in our latest blog on H-1Bs.

 As many of you know, the rate of denials and RFEs (Requests for Evidence) has been steadily increasing over the past four years. Not great news. But don’t worry, things are actually looking up. With the changeover to Biden’s administration, the White House staff is determined to work more diligently with US employers and companies in order to restore confidence back into our tattered immigration system. By doing so, we will see a stark decline in the rate of denials (good news for you), and generally more fair immigrations laws and policies when compared to the previous administration. With a streamlined process for H1-Bs, we may even see some of the caps being removed as well, allowing more foreigners to qualify.


There have also been huge changes to the lottery system that we’ll outline here. Although these changes were made during Trump’s rule, we highly doubt they will last long with Biden coming into the presidency. We’ll have to stay tuned into the wire for more news, but with Biden’s pro-immigration policies, his commitment to lifting the travel ban on Muslims, and his outline for immigration policy reform, it’s safe to say we are looking at a whole new ballgame for US immigration than what we’ve had in the past.


H-1B lottery system changes

H-1B season begins in March of 2021. A new rule was developed for this period, devised by Trump and his staff. It’s called Modification of Registration Requirement for Petitioners Seeking to File H-1B Cap Cases.


So what does this new rule do and what does it include?


    • Both good questions. The purpose of this rule is to modify the H-1B cap selection process, amend and change current H-1B procedures, and prioritize wages (instead of lottery chance) to make sure that H-1Bs are only issued to those who are paid the highest salary.


    • USCIS has made it clear that this rule will:
      1. ONLY effect cap-subject H-1B cases and cases that are going to be filed in 2021, and advanced degree H-1B cap.
      2. It will NOT include any cases that are processing extensions, renewals, and/or transfers.
      3. The rule will be effective March 9th, 2021.


Unlike before, this new rule will create a wage-based system to select H-1B visas, instead of the lottery based system we’ve seen for the past few years. Selections will start with the highest OES wage as indicated on the individual petition as it’s filed. There are 4 different wage level, each determined by skill level, expertise, and job level of the job offered. Level 4 will go first, then 3, 2, and finally 1.


In general, the lottery, as we knew it, would be abandoned and this new sliding order would take its place. That is, unless Biden steps up to change it, which will most likely occur during the first couple of weeks he’s in office. Until then, this new process will exclude a lot of people, mainly those who do not make a high enough wage to be considered, such as students, people in level 2, etc. This may seem like bleak news, but do not let this deter you from reaching out to our firm and consulting a member of our staff. With the drastic changes that will be occurring during Biden’s first couple of weeks and months in office, we are hopeful this rule won’t last long at all. Better to be overprepared and have discussed your case with an attorney, than to start the process late once Biden has overruled this order.


H-4 Spouses

Something you should also keep an eye out for is information regarding H-4 Spouses. H-4 Spouses are spouses who live in the US and are unable to work because of the Trump admin’s failure to issue EADs on time, specifically an issue with many errors and flaws in the system and with biometrics and appointments. Biden will need to really improve the EAD process. We’ll definitely be touching on this subject again once we have seen Biden in action.


We hope you’ve found this information useful! Thank you for taking the time to read our blog and as always, if you have any questions or concerns, you are welcome to call our Pittsburgh office at 412.258.8080, our Philadelphia office at 215-982-2381, or schedule a free consultation on our site using this link. Stay safe and keep healthy. We wouldn’t be able to run our business without you.