January 11, 2021
On November 2, 2020 we announced that DHS released its proposed rule to amend regulations for filing H-1B cap-subject petitions from random lottery selection to a wage-level-based selection process by generally first selecting registrations based on the highest Occupational Employment Statistics (OES) prevailing wage level that the proffered wage equals or exceeds for the relevant Standard Occupational Classification (SOC) code and area(s) of intended employment. United States Citizenship and Immigration Services (USCIS) considered public comments and announced on January 7, 2021 its decision to publish the proposed regulation as a final rule. The rule, set to take effect March 9, 2021, modifies the current H-1B cap selection lottery procedures to a system that prioritizes wages “to protect the economic interests of U.S. workers and better ensure the most highly skilled foreign workers benefit from the temporary employment program.”
USCIS states the ranking process will not alter the prevailing wage levels and will not affect the order of selection as between the regular cap and the advanced degree exemption. The wage level ranking will occur first for the regular cap selection and then for the advanced degree exemption.
As outlined in a previous update, the wage-based system will take on the following changes:
H-1B CAP
Where H-1B applications exceed the cap, United States Citizenship and Immigration Services (USCIS) will rank and select H-1B registrations/petitions on the basis of the highest OES wage level that the proffered wage were to equal 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.
Where there is no current OES prevailing wage information for a proffered position, USCIS will rank and select petitions based on the appropriate wage level that corresponds to the requirements of the proffered position. If the wage falls below an OES wage level I, USCIS will rank the petition in the same category as OES wage level I. USCIS will rank the petition in the same manner even if, a petitioner elects to obtain a prevailing wage using another legitimate/independent authoritative source (other than OES).
Alternatively, if there are 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 the regular cap is reached.
H-1B ADVANCED DEGREE EXEMPTION
USCIS will complete the same ranking and selection process to meet the advanced-degree exemption. If a sufficient number of registrations/petitions were submitted 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 that the proffered wage equals or exceeds 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.
Where there is no current OES prevailing wage information for a proffered position, USCIS will rank and select petitions based on the appropriate wage level that corresponds to the requirements of the proffered position. If the wage falls below an OES wage level I, USCIS will rank the petition in the same category as OES wage level I. USCIS will rank the petition in the same manner even if, a petitioner elects to obtain a prevailing wage using another legitimate/independent authoritative source (other than OES).
Alternatively, if fewer registrations than necessary to reach the advanced-degree exemption are submitted, USCIS would select all registrations properly submitted during the annual initial registration period, regardless of wage level, and would continue to accept registrations until it reaches the sufficient number of registrations to reach the advanced-degree exemption.
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 number of registrations needed to reach the numerical limitation.
CHANGES TO FILING
In addition to the information required on the current electronic registration form (and on the H-1B petition) Petitioners 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 proffered wage is the wage that the employer intends to pay the beneficiary. The SOC code and area of intended employment would be indicated on the LCA filed with the petition.
Petitioners relying on a prevailing wage that is not based on the OES survey, where the proffered wage is less than the corresponding level I OES wage, the registrant would select the “Wage Level I and below” box on the registration form. If the H-1B beneficiary would work in multiple locations, or in multiple position, USCIS would rank and select the registration based on the lowest corresponding OES wage level that the proffered wage will equal or exceed. The Petitioner would be required to specify on the registration the lowest corresponding OES wage level that the proffered wage would equal or exceed.
Where there is no current OES prevailing wage information for a proffered position, DHS provides limited information conveying to follow DOL’s guidance on prevailing wage determinations to determine which OES wage level to select on the registration. However, in these cases, most occupations default to $200,000.00.
EFFECTS
As Meyer Law Group has previously stated, the wage-based system will only result in an administrative nightmare for USCIS and even further adjudication delays. Moreover, such a system will only favor top tech companies of Silicon Valleys who will come out of this mostly unscathed while smaller smart-up companies struggle to pay their employees.
Meyer Law Group is committed to assisting their clients. Please contact Meyer Law Group if you have any questions or concerns regarding this policy update.
Brandon Meyer
Managing Partner
Paul Chen
Partner
Jennielyn Alcarion
Senior Attorney