DHS Proposes Wage-Based Selection Process to Replace H-1B Cap Random Selection Process

Last week DHS announced submission of a notice of proposed rulemaking (NPRM) to the Federal Register regarding amending regulations by which USCIS selects H-1B registrations for H-1B cap-subject petitions.

DHS proposes to 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. This proposed 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.
 
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 to this information, the Petitioner 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. The proposed rule also notes that for those Petitioners relying on a prevailing wage that is not based on the OES survey (ie. Private wage survey), if the proffered wage were less than the corresponding level I OES wage, the Petitioner would have to select the “Wage Level I and below” box on the registration form. 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.”

Once the NPRM is published in the Federal Register, parties will have 30 days to submit comments to the proposed rule. DHS will then review the comments and draft responses before issuing the final rule.
 

To view the proposed rule, click here.

By: Kristina M. Hernandez

Kristina is the NIV Practice Manager and an associate attorney at Reddy & Neumann, P.C. She was admitted to the State Bar of Texas in 2011. Her practice includes representing companies and individuals with employment-based visa petitions and applications and advising clients regarding litigation options in federal court pursuant to the Administrative Procedures Act (APA). Kristina also guides employers to ensure compliance with all Form I-9 requirements by conducting internal audits of clients’ records, processes, and procedures.

 

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