On October 28, 2020, the Department of Homeland Security (DHS) announced a notice of proposed rulemaking (NPRM) that would change the way cap-subject H-1B petitions are processed. The announced change would, in years when demand for new H-1B visas exceeds the annual numerical cap, replace the current annual lottery process with a system that prioritizes the selection of H-1B registrations based on the highest prevailing wage level that the employer’s salary offer equals or exceeds.
Prevailing wages are usually calculated by reference to data collected by the Department of Labor (DOL) through its Occupational Employment Statistics (OES) program. DOL uses OES data to set four levels of prevailing wage for occupations in locations across the United States. (On October 8, 2020, DOL made changes to this system that resulted in higher prevailing wages across the board.) Under DHS’ new rule, if more registrations are received during the H-1B registration period than is necessary to reach the year’s numerical cap, USCIS will rank and select the registrations based on the highest OES prevailing wage level that the proffered wage equals or exceeds.
USCIS will begin with registrations whose proffered wage meets or exceeds the OES Level 4 prevailing wage. If there are insufficient registrations with such wages, USCIS will then proceed in descending order to registrations whose proffered wage meets or exceeds the OES Levels 3, 2, and 1. (When USCIS had its first annual registration process for H-1B cap-subject cases, in March 2020, employers registered prospective H-1B employees without providing specific job or wage data. This proposed new regulation would require that the electronic registration form be amended to require the applicable OES prevailing wage level for the job offered.)
Thus, if more registrations are received at a particular OES prevailing wage level than is required to meet the applicable cap, USCIS will randomly select from all registrations containing that particular OES prevailing wage level. Put another way, if USCIS receives more than 65,000 registrations whose proffered wages exceed an OES wage level 4, the lottery will be run only on those registrations. If the H-1B beneficiary will work in multiple locations, each with different prevailing wages, USCIS will rank the registration based on the lowest OES wage level that the proffered wage will equal or exceed.
This proposed rule was published on November 2, 2020, and comments on the rule must be submitted on or before December 2, 2020. The public will have 60 days from November 2, 2020 to comment on the revisions to the H-1B Registration Tool and Form I-129 that will be required to implement the rule. The rule will not take effect until a Final Rule is published and made effective.
We will post further updates as they become available.
© Jewell Stewart & Pratt PC 2020