Background:
On April 18, 2017, President Trump issued an executive order that instructed DHS to:
“Propose new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate, to protect the interests of United States workers in the administration of our immigration system”
Executive Order. 13788 specifically mentioned the H-1B program and directed DHS and other agencies to
“suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries”
What is the Purpose of This Regulatory Action?
- DHS proposes to amend its regulations governing the selection of registrations submitted by prospective petitioners eventually seeking to file H-1B cap-subject petitions (or the selection of petitions, if the registration process were suspended)
- It includes petitions subject to the regular cap and those asserting eligibility for the advanced degree exemption, to allow for ranking and selection based on wage levels
- When applicable, USCIS would rank and select the registrations received generally on the basis of the highest OES wage level
- The proffered wage* would equal to wage or exceed for the relevant SOC code and in the area of intended employment, beginning with OES wage level IV and proceeding in descending order with OES wage levels III, II, and I
- This ranking process would not alter the prevailing wage level associated with a given position for U.S. Department of Labor (DOL) purposes
*(The proffered wage is the wage that the employer intends to pay the beneficiary).
What Are the Shortcomings of the Present Process According to Present Administration?
- The current random lottery selection process is reasonable, but not optimal
- It has caused results that contradict the purpose of the statute
- Under the current registration system the majority of H-1B cap-subject petitions have been filed for positions certified at the two lowest wage levels: level I or level II prevailing wages
- This contradicts the dominant legislative purpose of the statute
- The intent of the H-1B program is to help U.S. employers fill labor shortages in positions requiring Highly Skilled or Highly Educated Workers
- So, by changing the selection process, for these years of excess demand, from a random lottery selection to a wage-level-based selection process, DHS would implement the statute more faithfully to its dominant legislative purpose
- It will increase the chance of selection for registrations or petitions seeking to employ beneficiaries at wages that would equal or exceed the level IV or level III prevailing wage for the applicable occupational classification
- A wage-level-based selection also is consistent with the administration’s goal of improving policies such that H-1B classification is more likely to be awarded to petitioners seeking to employ higher-skilled and higher-paid beneficiaries
The H-1B Visa Program’s Numerical Cap and Exemptions
- The H-1B visa program allows U.S. employers to temporarily hire foreign workers to perform services in a specialty occupation**
- It could range from services related to a Department of Defense (DOD)cooperative research and development project or coproduction project, or services of distinguished merit and ability in the field of fashion modeling
- Congress has established limits on the number of foreign workers who may be granted initial H-1B nonimmigrant visas or status each fiscal year (FY) aka “Cap”
- The annual exemption from the 65,000 “cap” for H-1B workers for those who have earned a qualifying U.S. master’s or higher degree may not exceed 20,000 foreign workers
- Congressional intent behind creating the H-1B program was, in part, to help the U.S.employers fill labor shortages in positions requiring highly skilled or highly educated workers
- A key goal of the program at its inception was to help U.S. employers obtain the temporary employees they need to meet their business needs to remain competitive in the global economy
- The demand for H-1B workers subject to the annual numerical cap has exceeded the cap every year for more than a decade
**Note: A specialty occupation is defined as an occupation that requires the (1) theoretical and practical application of a body of highly specialized knowledge and (2) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum qualification for entry into the occupation in the United States
Why Can’t H-1B be Allotted by the Order They are Filed?
- It is not difficult to imagine a scenario where more petitions arrive on the final receipt date than are needed to fill the statutory “cap”.
- Hence, processing them ‘in order’ maybe random to begin with
- So, DHS has implemented regulations over the years that provide for a random selection from all filings or registrations that occur within a certain timeframe
- However, while the random selection of petitions or registrations is reasonable
- DHS believes it is neither the optimal nor the exclusive, method of selecting petitions or registrations toward the numerical allocations when more registrations or petitions, as applicable, are submitted than projected as needed to reach the numerical allocations
- Pure randomization does not serve the ends of the H-1B program or Congressional intent
- As demand for H-1B Visas has exceeded the annual supply for more than a decade DHS prefers that cap-subject H-1B visas go to beneficiaries earning the highest wages relative to their SOC codes and area(s) of intended employment
- DHS also believes that high salary generally is a reasonable proxy for skill level
- Hence, by engaging in a wage-level-based prioritization of registrations, DHS is better ensuring that new H-1B visas will go to the highest skilled or highest-paid beneficiaries
Summary Of the Proposed Rule
- DHS proposes to amend the selection process after electronic registrations for H-1B cap-subject petitions (or petitions, if the registration process is suspended), including those eligible for the advanced degree exemption)
- if more registrations were received during the annual initial registration period (or petition filing period, if applicable) than necessary to reach the applicable numerical allocation, USCIS would rank and select the registrations (or petitions, if the registration process was suspended) received generally on the basis of the highest OES wage level
- It will begin with OES wage level IV and proceeding in descending order with OES wage levels III, II, and I
- If the proffered wage were to fall below an OES wage level I because the proffered wage was based on a prevailing wage from another legitimate source (other than OES) or an independent authoritative source, USCIS would rank the registration in the same category as OES wage level I
- During an annual initial registration period of at least 14 days, if fewer registrations than necessary to reach the regular cap USCIS would select all registrations properly submitted during the annual initial registration period, regardless of wage level, and would continue to accept registrations until USCIS were to determine a final registration date based on the submission of a sufficient number to reach the regular “Cap”
- If more registrations were submitted on the final registration date than necessary to reach the regular cap, USCIS would rank and select registrations from among those submitted on the final registration date
- The selection will be based on the highest corresponding OES wage level that the proffered wage equals or exceeds for the relevant SOC code and in the area of intended employment
- USCIS would complete the same ranking and selection process to meet the advance-degree exemption
- If a sufficient number of registrations were submitted during the annual initial registration period to reach the advanced-degree exemption
- USCIS would rank and select registrations for beneficiaries who are eligible for the advanced-degree exemption generally on the basis of the highest OES wage level
- If USCIS were to receive and rank more registrations at a particular wage level than the projected number needed to meet the applicable numerical allocation, USCIS would randomly select from all registrations within that particular wage level a sufficient number of registrations
- Additionally, a registrant (or a petitioner if registration is suspended) would be required to provide the highest OES wage level that the proffered wage equals or exceeds for the relevant SOC code in the area of intended employment
Details of this Proposed Rule Can be Found Here
Written comments must be submitted on this proposed rule on or before December 2, 2020. You can find all the instruction for commenting here
We will continue to follow the progress of this rule and provide updates as they become available. There might be another lawsuit.
Meanwhile, if you have any question or comments about this new proposed rule, or have questions about the Green Card procedure in general, you can schedule a consultation with us:
Schedule a call at 469-994-9407 or contact us using the form.