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On November 2, 2020, DHS published a notice of proposed rulemaking that would amend DHS regulations governing the process by which USCIS selects H-1B registrations for the filing of H-1B petitions subject to the numerical limitations under INA section 214(g), or the way in which USCIS will select H-1B petitions for any year in which the registration requirement will be suspended. Under the proposal, USCIS would first select registrations for beneficiaries who will be paid according to the highest Occupational Employment Survey wage levels corresponding to their Standard Occupational Classification codes that their proffered wages equal or exceed. The proposed rule would not affect the order of selection between the regular cap and the advanced degree exemption. The wage level ranking would occur first for the regular cap selection and then for the advanced degree exemption.

Statement of Need:

This rule is needed to alleviate the downward pressure on the wages of H-1B workers and similarly employed U.S. workers resulting from the current use of the H-1B program. Changing the manner in which USCIS selects registrations, or petitions in any year in which USCIS suspends the H-1B registration process, to prioritize selection by wage level within the regular cap and the advanced degree exception is expected to alleviate downward pressure on the wages of H-1B and U.S. workers.

Summary of the Legal Basis:

Through this rule, DHS exercises its authority to interpret INA sections 101(a)(15)(H)(i)(b) and 214(g), 8 U.S.C. 1101(a)(15)(H)(i)(b) and 1184(g), to establish a wage-level based process for selecting H-1B registrations (or petitions in any year in which USCIS suspends the H-1B registration process).

Alternatives:

No

Anticipated Costs and Benefits:

DHS is still considering the exact cost and benefit impacts of the provisions.