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  • Writer's pictureKristina M. Hernandez

DHS Moving Forward with Wage-Based Selection Process for This Year’s H-1B Cap Season

As I mentioned in an earlier blog post, at the end of October DHS announced submission of a notice of proposed rulemaking (NPRM) to the Federal Register amending regulations by which USCIS selects H-1B registrations for H-1B cap-subject petitions.

The final rule, titled “Modification of Registration Requirement for Petitioners Seeking To File Cap-Subject H-1B Petitions” is scheduled to be published in the Federal Register tomorrow, and will take effect 60 days from publication (right in time for this year’s H-1B cap season).

The rule says that after receiving initial registrations, USCIS will rank and select registrations (or petitions, if the registration process were suspended) based on the highest OES prevailing wage level that the proffered wage equals or exceeds for the relevant SOC code and area of intended employment, beginning with Wage Level IV and proceeding in descending order with Wage Level III, II, and I. The rule would not affect the order of selection – the wage level ranking would occur first for the regular cap selection and then for the advanced degree exception. After USCIS completes the selection process for the regular 65,000 H-1B cap, USCIS will use the same ranking and selection process to meet the Master’s cap.

The current electronic registration form requires the Beneficiary’s name, gender, date of birth, country of birth, country of citizenship, passport number, and whether Petitioner is requesting considerations under the advanced degree exception. In addition, the electronic registration form (and the H-1B petition) will be amended to require provision of the highest wage level that the proffered wage equals or exceeds for the relevant SOC code in the area of intended employment. So, at the time of registering for a candidate, the Petitioner will need to provide the wage level that corresponds to the wage the Petitioner intends on paying the Beneficiary if selected.

Further, if the Beneficiary will be working in multiple locations, USCIS would rank and select the registration based on the lowest corresponding OES wage level.

DHS believes that replacing the random selection process with ranking based on wage level will incentivize petitioners to offer higher wages to H-1B workers, increase the average and median wage levels of H-1B beneficiaries, and “maximize H-1B cap allocations, so that they more likely would go to the best and brightest workers.” However, many comments to the proposed rule highlighted the negative impact on new graduates and entry-level workers, and the impact on companies that cannot offer to pay higher wages. Some of the comments to the proposed rule stated that this would limit the ability of IT companies to hire foreign workers and would stifle innovation, harm economic growth, and therefore impact job opportunities for US workers.

It is expected that lawsuits will be filed opposing this final rule. I will continue to provide updates, if any.

To view the final rule, click here.

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