WAGE SELECTION DELAYED: H-1B Cap Registration to Remain Random (For Now)

USCIS announced that there will be a delay of the effective date for the final rule Modification of Registration Requirements for Petitioners Seeking To File Cap-Subject H-1B Petitions. Without modification, the final rule was published on January 8, 2021, after a short comment period that ended in December 2020, and was scheduled for implementation on March 9, 2021. The rule plans to change the H-1B cap selection process from a random selection to one based on prevailing wage levels. The rule would prioritize the highest-paid positions and according to USCIS, would “help counter the downward pressure on the wages of U.S. workers that is created by an annual influx of relatively lower-paid, new cap-subject H-1B workers.”

The official notice delaying the effective date will be published on Monday, February 8, 2021. The advance copy notes that the rule will be effective December 31, 2021 since USCIS will not “have adequate time to complete system development, thoroughly test the modifications, train staff, and conduct public outreach needed to ensure an effective and orderly implementation of the H1B Selection Final Rule by the time the initial registration period will be open for the upcoming fiscal year (FY) 2022 H-1B cap season.” The notice also emphasizes that all H-1B registrants should be treated under the same registration standards, hence the delay to December in case subsequent registration periods are opened after the initial registration window.

The notice also states DHS leadership will evaluate the role and its policies. DHS will open up public comments on the delay until 30 days after the date of publication in the Federal Register.

What to Expect in FY 2023

Key Provisions of the Wage-Based Selection Rule

While the H-1B cap registration system has historically been a random selection process, the rule would shift to a ranking of registrations based on the highest OES wage level that the proffered wage equaled or exceeded for the relevant SOC code in the area of intended employment. The top-ranked registrations would begin at OES wage level IV and proceed in descending order.

Wage Considerations

  • If the proffered wage falls below OES wage level I because the wage is based on a prevailing wage from another legitimate source (other than OES) or an independent authoritative source, USCIS will rank the registration as OES level I.
  • After the 65,000 “regular cap” selections are made, the same process would be utilized to meet the advanced-degree exemption.
  • If USCIS receives and ranks more registrations at a particular wage level than the projected number needed to meet the applicable numerical allocation, USCIS will randomly select from all registrations within that particular wage level to reach the applicable numerical limitation.
  • If the H-1B beneficiary will work in multiple locations, USCIS will rank and select the registration based on the lowest corresponding OES wage level that the proffered wage will equal or exceed.
  • Where there is no current OES prevailing wage information for the proffered position, USCIS will rank and select the registration based on the OES wage level that corresponds to the requirements of the proffered position.
  • The electronic registration form (and the H-1B petition) will be amended to require provision of the highest OES wage level that the proffered wage equals or exceeds for the relevant SOC code in the area of intended employment.

Registration & Adjudication Updates

  • The proposed rule requires that a valid registration must represent a legitimate job offer.
  • USCIS may deny the petition if it is determined that the statements on the registration or petition were inaccurate, fraudulent, or misrepresented a material fact.
  • A petition also may be denied if it is not based on a valid registration submitted by the petitioner (or its designated representative), or a successor in interest, for the beneficiary named in the petition.
  • USCIS may deny or revoke approval of a subsequent new or amended petition filed by the petitioner, or a related entity, on behalf of the same beneficiary, if USCIS determines that the filing of the new or amended petition is part of the petitioner’s attempt to unfairly decrease the proffered wage to an amount that would be equivalent to a lower wage level, after listing a higher wage level on the registration to increase the odds of selection.
  • USCIS will not deny an amended or new petition solely on the basis of a different proffered wage if that wage does not correspond to a lower OES wage level than the wage level on which the registration was based.

We will be closely monitoring the challenges to this rule in order to best advise on preparation for next year’s H-1B cap selection process.

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