Labor & Employment Law Daily Final rule on H-1B cap-subject petition selection prioritizes by wage level
Tuesday, January 12, 2021

Final rule on H-1B cap-subject petition selection prioritizes by wage level

By Pamela Wolf, J.D.

The final rule adopts the proposed version with no changes to the regulatory text.

The Department of Homeland Security has released a final rule amending its regulations governing the process under which U.S. Citizenship and Immigration Services (USCIS) selects H-1B registrations for the filing of H-1B cap-subject petitions (or H-1B petitions for any year in which the registration requirement is suspended). Under the final rule, USCIS will generally first select 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 final rule is effective 60 days after publication in the Federal Register, according to the notice slated for publication January 8, 2021. The final version makes no changes to the regulatory text of the proposed rule issued November 2, 2020 (see Proposed selection process for H–1B cap-subject petitions would prioritize by wage level, November 2, 2020).

What will the final rule accomplish? DHS said that the final rule will:

  • Modify the H-1B cap selection process;
  • Amend current lottery procedures; and
  • Prioritize wages to protect the economic interests of U.S. workers and better ensure the most highly skilled foreign workers benefit from the temporary employment program.

By modifying the H-1B cap selection process, DHS expects to “incentivize employers to offer higher salaries,” and/or petition for higher-skilled positions, and establish a more certain path for businesses to achieve personnel needs and remain globally competitive.

Notably, the changes will only affect H-1B registrations (or petitions, if the registration process is suspended) submitted by prospective petitioners seeking to file H-1B cap-subject petitions. It will be implemented for both the H-1B regular cap and the H-1B advanced degree exemption, but it will not change the order of selection between the two as established by the H-1B registration final rule.

Deterring abuses. The final rule is also intended to cut off some of the current program abuses. “The H-1B temporary visa program has been exploited and abused by employers primarily seeking to fill entry-level positions and reduce overall business costs,” USCIS Deputy Director for Policy Joseph Edlow said in a statement. “The current H-1B random selection process makes it difficult for businesses to plan their hiring, fails to leverage the program to compete for the best and brightest international workforce, and has predominately resulted in the annual influx of foreign labor placed in low-wage positions at the expense of U.S. workers.”

Comments did not prompt modification. In response to the rulemaking, DHS received 1103 comments during the 30-day public comment period, and 388 comments on the rule’s information collection requirements before the comment period ended. A great majority these comments were in form letter copies rather than unique submissions. Commenters consisted primarily of individuals, including anonymous submissions. DHS received the remaining submissions from professional associations, trade or business associations, employers/companies, law firms, advocacy groups, schools/universities, attorneys/lawyers, joint submissions, research institutes/organizations, and a union. After careful consideration of all the comments, DHS issued the final rule without modifications to the regulatory text of its proposed version.

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