DHS Proposal Seeks H-1B Cap Selection Process Based on Wage Level

The issue

The Department of Homeland Security (DHS) is proposing a regulation that seeks to replace its random, computerized H-1B lottery with a system that allocates H-1B visa numbers according to the Department of Labor’s four-level wage system. The proposed rule, which is expected to be published in the Federal Register in the coming days, will give priority in the H-1B selection process to foreign nationals whose offered salary falls in the highest level of their occupation. 

The forthcoming proposal is the latest effort by the Trump Administration to restrict the H-1B program.  Earlier this month, the Department of Labor and DHS fast-tracked two rules related to this effort. The DOL rule, which took effect on October 8, significantly increased Occupational Employment Statistics (OES) prevailing wage levels for the H-1B program. Its companion DHS rule, which will take effect on December 7, will tighten the definition of “specialty occupation,” limit third-party placement H-1B validity to one year, and reimpose contract and itinerary requirements that had been rescinded earlier this year, among other changes. 

The proposed regulation is expected to be published for public feedback in the coming days. Comments will be accepted for 30 days on the proposed rule and 60 days on the proposed changes to related USCIS forms, including the H-1B cap registration form. The agency has made an advance copy of the proposal available here.

A closer look at the proposed selection process

If the rule is finalized as proposed, it would discontinue the computerized H-1B selection process and replace it with a wage-level-based allocation process. A first allocation would distribute H-1B numbers under the 65,000 standard cap,  followed by a second allocation that would distribute H-1B numbers under the 20,000 advance degree cap. Distribution would occur as follows:

• Allocation of H-1B quota numbers would be based on the highest OES prevailing wage level that the offered wage equals or exceeds, starting with level IV, and then continuing to select cases in descending order from OES wage levels III, II and I.
• Where an offered wage is lower than the OES wage level 1 because a private wage survey is used, USCIS would rank the registration in the same category as OES wage level 1.
• If the beneficiary will work in multiple locations, USCIS would rank the filing according to the lowest corresponding OES wage level that the offered wage will equal or exceed.
• Where there is no available OES prevailing wage information for the offered position, USCIS will rank the filing based on the OES wage level that corresponds to the requirements of the position.

 

What is next for the proposal

After the rule is published in the Federal Register, the public will have 30 days to comment on the rule and 60 days to comment on related forms. DHS will then review the feedback and prepare to issue a final rule in the Federal Register. Some aspects of the rule could be revised based on public feedback. There is no set timeframe for publication of a final rule, and while the process frequently takes several months, DHS has indicated that it hopes to have it in place by this coming spring when the Fiscal Year 2022 cap lottery will take place. However, the prospects for the rule may depend on the outcome of the U.S. presidential election.

Comments from business communities will be important to make the agency aware of the impact of the rule on U.S. competitiveness in the competition for global talent. If your organization wishes to comment on the proposed rule, please contact your designated Fragomen professional or the firm’s Government Strategies and Compliance Group.

Fragomen is closely following the implementation of this proposal and will provide updates.

This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen