1676 Federal Register / Vol. 86, No. 5 / Friday, January 8, 2021 / Rules and Regulations 

DEPARTMENT OF HOMELAND 

SECURITY 

8 CFR Part 214 

[CIS No. 2679–21; DHS Docket No. USCIS– 

2020–0019] 

RIN 1615–AC61 

Modification of Registration 

Requirement for Petitioners Seeking 

To File Cap-Subject H–1B Petitions 

AGENCY: U.S. Citizenship and 

Immigration Services, Department of 

Homeland Security. 

ACTION: Final rule. 

SUMMARY: The Department of Homeland 

Security (DHS or the Department) is 

amending its regulations governing the 

process by which U.S. Citizenship and 

Immigration Services (USCIS) selects H– 

1B registrations for the filing of H–1B 

cap-subject petitions (or H–1B petitions 

for any year in which the registration 

requirement is suspended), 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. 

DATES: This final rule is effective March 

9, 2021. 

FOR FURTHER INFORMATION CONTACT: 

Charles L. Nimick, Chief, Business and 

Foreign Workers Division, Office of 

Policy and Strategy, U.S. Citizenship 

and Immigration Services, Department 

of Homeland Security, 5900 Capital 

Gateway Drive, Camp Springs, MD 

20746; telephone 240–721–3000 (this is 

not a toll-free number). Individuals with 

hearing or speech impairments may 

access the telephone numbers above via 

TTY by calling the toll-free Federal 

Information Relay Service at 1–877– 

889–5627 (TTY/TDD). 

SUPPLEMENTARY INFORMATION: 

I. Table of Contents 

I. Table of Contents 

II. Table of Abbreviations 

III. Background and Discussion 

A. Purpose and Summary of the Regulatory 

Action 

B. Legal Authority 

C. Summary of Changes From the Notice of 

Proposed Rulemaking 

D. Implementation 

E. The H–1B Visa Program 

F. Current Selection Process 

G. Final Rule 

IV. Response to Public Comments on the 

Proposed Rule 

A. Overview of Comments and General 

Feedback on the Proposed Rule 

1. General Support for the Proposed Rule 

a. Positive Impacts on New Graduates and 

Entry-Level Workers 

b. Positive Impacts on Healthcare 

Workforce 

c. Positive Impacts on the Economy 

2. General Opposition to the Proposed Rule 

a. Immigration Policy Concerns 

b. Negative Impacts on New Graduates and 

Entry-Level Workers, Academic 

Institutions, Healthcare Workers and 

Facilities, Employers, and the Economy 

i. New Graduates and Entry-Level Workers 

ii. Academic Institutions 

iii. Healthcare Workforce and Facilities 

iv. Employers 

v. Economy 

c. General Wage-Based Selection Concerns 

3. Other General Feedback 

B. Basis for Rule 

1. DHS Statutory/Legal Authority 

2. Substantive Comments on the Need for 

the Rule/DHS Justification 

a. Support for the DHS Rationale 

b. Rule Is Based on False Premises/ 

Rationale 

c. Lack of Evidence To Support 

Rulemaking 

C. Proposed Changes to the Registration 

Process for H–1B Cap-Subject Petitions 

1. Proposed Wage-Based Selection 

(Selection Process for Regular Cap and 

Advanced Degree Exemption, 

Preservation of Random Selection 

Within a Prevailing Wage) 

2. Required Information From Petitioners 

a. OES Wage Level 

i. Highest OES Wage Level That the 

Proffered Wage Would Equal or Exceed 

ii. Highest OES Wage Level When There Is 

No Current OES Prevailing Wage 

Information 

iii. Lowest OES Wage Level That the 

Proffered Wage Would Equal or Exceed 

When Beneficiary Would Work in 

Multiple Locations or Positions 

iv. Other Comments on OES Wage Level 

b. Attestation to the Veracity of the 

Contents of the Registration and Petition 

(Including Comments on Rejections, 

Denials, and Revocations) 

3. Requests for Comments on Alternatives 

D. Other Issues Relating to Rule 

1. Requests To Extend the Comment Period 

2. Rulemaking Process 

a. Multiple H–1B Rulemakings 

b. Other Rulemaking Process Comments 

3. Effective Date and Implementation 

E. Statutory and Regulatory Requirements 

1. Impacts and Benefits (E.O. 12866, 13563, 

and 13771) 

a. Methodology and Adequacy of the CostBenefit Analysis 

b. Costs 

c. Benefits 

2. Paperwork Reduction Act 

F. Out of Scope 

V. Statutory and Regulatory Requirements 

A. Executive Orders 12866 (Regulatory 

Planning and Review), Executive Order 

13563 (Improving Regulation and 

Regulatory Review), and Executive Order 

13771 (Reducing Regulation and 

Controlling Regulatory Costs) 

1. Summary of Economic Effects 

2. Background and Purpose of the Final 

Rule 

3. Historic Population 

4. Cost-Benefit Analysis 

a. Costs and Cost Savings of Regulatory 

Changes to Petitioners 

i. Methodology Based on Historic FYs 

2019–2020 

ii. FY 2021 Data 

iii. Unquantified Costs & Benefits 

iv. Costs of Filing Form I–129 Petitions 

v. Costs of Submitting Registrations as 

Modified by This Final Rule 

vi. Familiarization Cost 

b. Total Estimated Costs of Regulatory 

Changes 

c. Costs to the Federal Government 

B. Regulatory Flexibility Act 

1. A Statement of Need for, and Objectives 

of, This Final Rule 

2. A Statement of Significant Issues Raised 

by the Public Comments in Response to 

the Initial Regulatory Flexibility 

Analysis, a Statement of Assessment of 

Any Changes Made in the Proposed Rule 

as a Result of Such Comments 

3. The Response of the Agency to Any 

Comments Filed by the Chief Counsel for 

Advocacy of the Small Business 

Administration in Response to the Rule, 

and a Detailed Statement of Any Change 

Made to the Final Rule as a Result of the 

Comments 

4. A Description of and an Estimate of the 

Number of Small Entities to Which This 

Final Rule Will Apply or an Explanation 

of Why No Such Estimate Is Available 

5. A Description of the Projected Reporting, 

Recordkeeping, and Other Compliance 

Requirements of the Final Rule, 

Including an Estimate of the Classes of 

Small Entities That Will Be Subject to 

the Requirement and the Types of 

Professional Skills Necessary for 

Preparation of the Report or Record 

6. Description of the Steps the Agency Has 

Taken To Minimize the Significant 

Economic Impact on Small Entities 

Consistent With the Stated Objectives of 

the Applicable Statues, Including a 

Statement of Factual, Policy, and Legal 

Reasons for Selecting the Alternative 

Adopted in the Final Rule and Why Each 

One of the Other Significant Alternatives 

to the Rule Considered by the Agency 

Which Affect the Impact on Small 

Entities Was Rejected 

C. Congressional Review Act 

D. Unfunded Mandates Reform Act of 1995 

E. Executive Order 13132 (Federalism) 

F. Executive Order 12988 (Civil Justice 

Reform) 

G. Executive Order 13175 (Consultation 

and Coordination With Indian Tribal 

Governments) 

H. National Environmental Policy Act 

(NEPA) 

I. Paperwork Reduction Act 

1. USCIS H–1B Registration Tool 

2. USCIS Form I–129 

J. Signature 

II. Table of Abbreviations 

BLS—U.S. Bureau of Labor Statistics 

CEQ—Council on Environmental Quality 

CNMI—Commonwealth of the Northern 

Mariana Islands 

CRA—Congressional Review Act 


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Federal Register / Vol. 86, No. 5 / Friday, January 8, 2021 / Rules and Regulations 1677 

1See U.S. Department of Homeland Security, U.S. 

Citizenship, and Immigration Services, Office of 

Policy and Strategy, Policy Research Division, I–129 

Petition for H–1B Nonimmigrant Worker (Cap 

Subject) Wage Levels for H–1B Petitions filed in 

FY2018, Database Queried: Aug. 17, 2020, Report 

Created: Aug. 17, 2020, Systems: C3 via SASPME, 

DOL OFLC Performance DATA H1B for 2018, 2019 

(showing that, for petitions with identifiable 

certified labor condition applications, 161,432 of 

the 189,963 (or approximately 85%) H–1B petitions 

for which wage levels were reported were for level 

I and II wages); I–129 Petition for H–1B 

Nonimmigrant Worker (Cap Subject) Wage Levels 

for H–1B Petitions filed in FY2019, Database 

Queried: Aug. 17, 2020, Report Created: Aug. 17, 

2020, Systems: C3 via SASPME, DOL OFLC 

Performance DATA H1B for 2018, 2019 (showing 

that, for petitions with identifiable certified labor 

condition applications, 87,589 of the 103,067 (or 

approximately 85%) H–1B petitions for which wage 

levels were reported were for level I and II wages). 

See also HaeYoun Park, How Outsourcing 

Companies are Gaming the Visa System, N.Y. 

Times (Nov. 10, 2015), https://www.nytimes.com/ 

interactive/2015/11/06/us/outsourcing-companiesdominate-h1b-visas.html (noting ‘‘H–1B workers at 

outsourcing firms often receive wages at or slightly 

above $60,000, below what skilled American 

technology professionals tend to earn, so those 

firms can offer services to American companies at 

a lower cost, undercutting American workers’’); 

Daniel Costa and Ron Hira, H–1B Visas and 

Prevailing Wage Level, Economic Policy Institute 

(May 4, 2020), https://www.epi.org/publication/h1b-visas-and-prevailing-wage-levels/ (explaining 

that ‘‘the fundamental flaw of the H–1B program is 

that it permits U.S. employers to legally underpay 

H–1B workers relative to U.S. workers in similar 

occupations in the same region). 

2See also 6 U.S.C. 202(4) (charging the Secretary 

with ‘‘[e]stablishing and administering rules . . . 

governing the granting of visas or other forms of 

permission . . . to enter the United States to 

individuals who are not a citizen or an alien 

lawfully admitted for permanent residence in the 

United States’’). 

DHS—U.S. Department of Homeland 

Security 

DOD—U.S. Department of Defense 

DOL—U.S. Department of Labor 

DOS—U.S. Department of State 

EA—Environmental Assessment 

EIS—Environmental Impact Statement 

E.O.—Executive Order 

FEMA—Federal Emergency Management 

Agency 

FQHC—Federally Qualified Healthcare 

Center 

FRFA—Final Regulatory Flexibility Analysis 

FVRA—Federal Vacancies Reform Act 

FY—Fiscal Year 

GAO—U.S. Government Accountability 

Office 

HHS—U.S. Department of Health and Human 

Services 

HPSA—Health Professional Shortage Area 

HSA—Homeland Security Act of 2002 

ICE—U.S. Immigration and Customs 

Enforcement 

IMG—International Medical Graduate 

INA—Immigration and Nationality Act 

INS—Immigration and Naturalization Service 

IT—Information Technology 

LCA—Labor Condition Application 

NAICS—North American Industry 

Classification System 

NEPA—National Environmental Policy Act 

NPRM—Notice of Proposed Rulemaking 

OES—Occupational Employment Statistics 

OMB—Office of Management and Budget 

OPT—Optional Practical Training 

R&D—Research and Development 

SOC—Standard Occupational Classification 

STEM—Science, Technology, Engineering, 

and Mathematics 

UMRA—Unfunded Mandates Reform Act of 

1995 

USCIS—U.S. Citizenship and Immigration 

Services 

VA—U.S. Department of Veterans Affairs 

III. Background and Discussion 

A. Purpose and Summary of the 

Regulatory Action 

DHS is amending its regulations 

governing the selection of registrations 

submitted by prospective petitioners 

seeking to file H–1B cap-subject 

petitions (or the selection of petitions, if 

the registration process is suspended), 

which 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 will rank and select 

the registrations received generally on 

the basis of the highest OES wage level 

that the proffered wage equals or 

exceeds for the relevant SOC code 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. The proffered wage 

is the wage that the employer intends to 

pay the beneficiary. This ranking 

process will not alter the prevailing 

wage levels associated with a given 

position for U.S. Department of Labor 

(DOL) purposes, which are informed by 

a comparison of the requirements for the 

proffered position to the normal 

requirements for the occupational 

classification. This final rule 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. 

Rote ordering of petitions leads to 

impossible results because petitions are 

submitted simultaneously. While 

administering a random lottery system 

is reasonable, it is inconsiderate of 

Congress’s statutory purposes for the H– 

1B program and its administration. 

Instead, a registration system that 

faithfully implements the Immigration 

and Nationality Act (INA) while 

prioritizing registrations based on wage 

level within each cap will incentivize 

H–1B employers to offer higher wages, 

or to petition for positions requiring 

higher skills and higher-skilled aliens 

that are commensurate with higher wage 

levels, to increase the likelihood of 

selection and eligibility to file an H–1B 

cap-subject petition. Moreover, it will 

maximize H–1B cap allocations, so that 

they more likely will go to the best and 

brightest workers; and it will 

disincentivize abuse of the H–1B 

program to fill relatively lower-paid, 

lower-skilled positions, which is a 

significant problem under the present 

selection system.1

B. Legal Authority 

The Secretary of Homeland Security’s 

authority for these regulatory 

amendments is found in various 

sections of the Immigration and 

Nationality Act (INA), 8 U.S.C. 1101 et 

seq., and the Homeland Security Act of 

2002 (HSA), Public Law 107–296, 116 

Stat. 2135, 6 U.S.C. 101 et seq. General 

authority for issuing this final rule is 

found in INA section 103(a), 8 U.S.C. 

1103(a), which authorizes the Secretary 

to administer and enforce the 

immigration and nationality laws, as 

well as HSA section 102, 6 U.S.C. 112, 

which vests all of the functions of DHS 

in the Secretary and authorizes the 

Secretary to issue regulations.2 Further 

authority for these regulatory 

amendments is found in: 

• INA section 101(a)(15)(H)(i)(b), 8 

U.S.C. 1101(a)(15)(H)(i)(b), which 

classifies as nonimmigrants aliens 

coming temporarily to the United States 

to perform services in a specialty 

occupation or as a fashion model with 

distinguished merit and ability; 

• INA section 214(a)(1), 8 U.S.C. 

1184(a)(1), which authorizes the 

Secretary to prescribe by regulation the 

terms and conditions of the admission 

of nonimmigrants; 

• INA section 214(c), 8 U.S.C. 

1184(c), which, among other things, 

authorizes the Secretary to prescribe 

how an importing employer may 

petition for an H nonimmigrant worker, 

and the information that an importing 

employer must provide in the petition; 

and 

• INA section 214(g), 8 U.S.C. 

1184(g), which, among other things, 

prescribes the H–1B numerical 

limitations, various exceptions to those 

limitations, and criteria concerning the 

order of processing H–1B petitions. 

• INA section 214(i), 8 U.S.C. 1184(i), 

which defines the term ‘‘specialty 

occupation,’’ referenced in INA section 

(101)(a)(15)(H)(i)(B), 8 U.S.C. 

1101(a)(15)(H)(i)(B), a requirement for 

the classification. 

Further, under HSA section 101, 6 

U.S.C. 111(b)(1)(F), a primary mission of 

DHS is to ‘‘ensure that the overall 

economic security of the United States 

is not diminished by efforts, activities, 

and programs aimed at securing the 

homeland.’’ 


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3See Walker Macy v. USCIS, 243 F.Supp.3d 1156, 

1176 (D. Or. 2017) (finding that USCIS’ rule 

establishing the random-selection process was a 

reasonable interpretation of the INA). 

4See 243 F.Supp.3d at 1176. 

5See U.S. Department of Homeland Security, U.S. 

Citizenship and Immigration Services, Modification 

of Registration Requirement for Petitioners Seeking 

To File Cap-Subject H–1B Petitions, 85 FR 69236 

(Nov. 2, 2020). 

6See INA section 101(a)(15)(H)(i)(b), 8 U.S.C. 

1101(a)(15)(H)(i)(b); Public Law 101–649, section 

222(a)(2), 104 Stat. 4978 (Nov. 29, 1990); 8 CFR 

214.2(h). 

7See INA section 214(i)(l), 8 U.S.C. 1184(i)(l). 

8See INA section 214(g), 8 U.S.C. 1184(g). 

9See INA section 214(g)(7), 8 U.S.C. 1184(g)(7). 

10See INA section 214(g), 8 U.S.C. 1184(g). 

11See INA section 214(g)(5) and (7), 8 U.S.C. 

1184(g)(5) and (7). 

12See INA section 214(g)(5)(C), 8 U.S.C. 

1184(g)(5)(C). 

13See INA section 214(g)(5), 8 U.S.C. 1184(g)(5). 

14See 8 CFR 214.2(h)(8)(iii)(D)(2). See also 8 CFR 

214.2(h)(8)(iii)(A)(4) (If the petition is based on a 

registration that was submitted during the initial 

registration period, then the beneficiary’s 

employment start date on the petition must be 

October 1 of the associated FY, consistent with the 

registration, regardless of when the petition is 

filed). 

15 During the initial filing period, if USCIS does 

not receive a sufficient number of petitions 

projected as needed to reach the numerical 

allocations, USCIS will select additional 

registrations, or reopen the registration process, as 

applicable, to receive the number of petitions 

projected as needed to reach the numerical 

allocations. See 8 CFR 214.2(h)(8)(iii)(A)(7). 

Finally, as explained above, 

‘‘Congress left to the discretion of USCIS 

how to handle simultaneous 

submissions.’’ 3 Accordingly, ‘‘USCIS 

has discretion to decide how best to 

order those petitions’’ in furtherance of 

Congress’ legislative purpose.4

C. Summary of Changes From the 

Notice of Proposed Rulemaking 

Following careful consideration of 

public comments received, including 

relevant data provided, DHS has 

declined to modify the regulatory text 

proposed in the Notice of Proposed 

Rulemaking (NPRM) published in the 

Federal Register on November 2, 2020.5

Therefore, DHS is publishing this final 

rule as proposed in the NPRM. 

D. Implementation 

The changes in this final rule will 

apply to all registrations (or petitions, in 

the event that registration is suspended), 

including those for the advanced degree 

exemption, submitted on or after the 

effective date of the final rule. The 

treatment of registrations and petitions 

filed prior to the effective date of this 

final rule will be based on the regulatory 

requirements in place at the time the 

registration or petition, as applicable, is 

properly submitted. DHS has 

determined that this manner of 

implementation best balances 

operational considerations with fairness 

to the public. USCIS will engage in 

public outreach and provide training to 

the regulated public on the modified 

registration system in advance of its 

implementation. 

E. The H–1B Visa Program 

The H–1B visa program allows U.S. 

employers to temporarily hire foreign 

workers to perform services in a 

specialty occupation, services related to 

a U.S. 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.6

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.7

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).8

This limitation, commonly referred to as 

the ‘‘H–1B cap,’’ generally does not 

apply to H–1B petitions filed on behalf 

of certain aliens who have previously 

been counted against the cap.9 The total 

number of foreign workers who may be 

granted initial H–1B nonimmigrant 

status during any FY currently may not 

exceed 65,000.10 Certain petitions are 

exempt from the 65,000 numerical 

limitation.11 The annual exemption 

from the 65,000 cap for H–1B workers 

who have earned a qualifying U.S. 

master’s or higher degree may not 

exceed 20,000 foreign workers.12

Moreover, H–1B petitions for aliens who 

are employed or have received offers of 

employment at institutions of higher 

education, nonprofit entities related to 

or affiliated with institutions of higher 

education, or nonprofit research 

organizations or government research 

organizations, are also exempt from the 

cap.13

F. Current Selection Process 

DHS implemented the current H–1B 

registration process by regulation after 

determining that it could introduce a 

cost-saving, innovative solution to 

facilitate the selection of H–1B capsubject petitions toward the annual 

numerical allocations. Under the 

current selection process, all petitioners 

seeking to file an H–1B cap-subject 

petition must first electronically submit 

a registration for each beneficiary on 

whose behalf they seek to file an H–1B 

cap-subject petition, unless USCIS 

suspends the registration requirement. 

A prospective petitioner whose 

registration is selected is then eligible to 

file an H–1B cap-subject petition for the 

selected registration during the 

associated filing period. 

USCIS monitors the number of H–1B 

registrations it receives during the 

announced registration period and, at 

the conclusion of that period, if more 

registrations are submitted than 

projected as needed to reach the 

numerical allocations, randomly selects 

from among properly submitted 

registrations the number of registrations 

projected as needed to reach the H–1B 

numerical allocations. USCIS first 

selects registrations submitted on behalf 

of all beneficiaries, including those 

eligible for the advanced degree 

exemption. USCIS then selects from the 

remaining registrations a sufficient 

number projected as needed to reach the 

advanced degree exemption. 

A prospective petitioner whose 

registration is selected is notified of the 

selection and instructed that the 

petitioner is eligible to file an H–1B capsubject petition for the beneficiary 

named in the selected registration 

within a filing period that is at least 90 

days in duration and begins no earlier 

than 6 months ahead of the actual date 

of need (commonly referred to as the 

employment start date).14 When 

registration is required, a petitioner 

seeking to file an H–1B cap-subject 

petition is not eligible to file the petition 

unless the petition is based on a valid, 

selected registration for the beneficiary 

named in the petition.15

G. Final Rule 

Following careful consideration of all 

public comments received, DHS is 

issuing this final rule as proposed in the 

NPRM, without modifications to the 

regulatory text. 

IV. Response to Public Comments on 

the Proposed Rule 

A. Overview of Comments and General 

Feedback on the Proposed Rule 

In response to the rulemaking, DHS 

received 1103 comments during the 30- 

day public comment period, and 388 

comments on the rule’s information 

collection requirements before the 

comment period ended. A large majority 

of public comments received are form 

letter copies rather than unique 

submissions. Commenters consisted 

primarily of individuals, including 

anonymous submissions. DHS received 

the remaining submissions from 

professional associations, trade or 


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16See supra note 1. 

business associations, employers/ 

companies, law firms, advocacy groups, 

schools/universities, attorneys/lawyers, 

joint submissions, research institutes/ 

organizations, and a union. 

DHS reviewed all of the public 

comments received in response to the 

proposed rule and is addressing 

substantive comments relevant to the 

proposed rule (i.e., comments that are 

pertinent to the proposed rule and 

DHS’s role in administering the 

registration requirement for petitioners 

seeking to file H–1B petitions on behalf 

of cap-subject beneficiaries) in this 

section IV, grouped by subject area. 

While DHS provides a brief overview of 

comments deemed out of scope of this 

rulemaking in section IV.F. (e.g., 

comments seeking changes in U.S. laws, 

or regulations and agency policies 

unrelated to the changes proposed in 

the NPRM), DHS is not providing 

substantive responses to those 

comments. 

Public comments may be reviewed in 

their entirety at the Federal Docket 

Management System (FDMS) at http://

www.regulations.gov, docket number 

USCIS–2020–0019–0001. 

1. General Support for the Proposed 

Rule 

Comments: Multiple commenters 

expressed general support for the rule, 

providing the following rationale: The 

proposed rule should be implemented 

as soon as possible; the proposed rule is 

a step in the right direction; the 

proposed rule is necessary to protect 

U.S. workers; the proposed rule is a 

well-guided and legal attempt to 

strengthen the economy and legal 

immigration of workers; wage-based H– 

1B allocation can help economic 

growth; salary is the best and most 

reasonable criteria, since it is not 

practical to compare the skills of one 

professional with another; people with 

higher salaries should be prioritized to 

receive H–1B visas; the United States 

should increase the possibility of 

obtaining a visa for people with higher 

degrees or wages; the proposed rule 

would ensure more visas were allocated 

to the best workers; the proposed rule 

would keep high-level, meritorious 

employees in the United States; H–1B 

allocation should be merit-based; the 

proposed rule would ensure that 

workers who were to contribute most 

would get to stay in the United States 

while other workers still would have the 

same chance of being selected as 

previous years; if companies were 

willing to pay a higher salary for some 

workers, it would mean that they would 

deserve a better chance to stay and work 

in the United States; people with more 

professional experience should not have 

the same chance of staying in the United 

States as college graduates or less 

experienced professionals; the proposed 

rule would preserve the true intent of 

the H–1B program, which was to allow 

U.S. companies to seek out the best 

foreign talent; there would be less 

duplication of H–1B petitions for the 

same employees; every year, many 

highly qualified workers have had to 

leave the United States because they 

have not been selected in the existing 

lottery system; entry-level recruitment 

of U.S. citizens to fill roles occupied by 

H–1B beneficiaries can and should be 

done in high schools, vocational 

schools, and college campuses; the 

proposed rule would increase the 

average and median wage levels of H– 

1B beneficiaries; the current lottery 

process makes it difficult for employers 

to plan for their staffing needs, so the 

proposed rule will benefit both 

employers and employees. 

Response: DHS thanks these 

commenters for their support and agrees 

with commenters that the proposed rule 

should be implemented as soon as 

possible; the proposed rule is a step in 

the right direction; the proposed rule is 

necessary to better protect U.S. workers, 

particularly those U.S. workers 

competing against H–1B workers for 

entry-level jobs; and this rule is a wellguided and legal attempt to improve the 

H–1B cap selection process. DHS further 

agrees that relative salary generally is a 

reasonable proxy for skill level and the 

wage level that a proffered wage equals 

or exceeds is a reasonable criterion for 

registration. DHS also agrees that this 

rule may lead to the selection of the 

most-skilled or most-valued H–1B 

beneficiaries; may lead to an increase in 

wages for H–1B beneficiaries; may 

increase access to entry-level positions 

for available and qualified U.S. workers; 

and is expected to reduce uncertainty 

about selection resulting from a purely 

randomized process. Prioritizing wage 

levels in the registration selection 

process is expected to incentivize 

employers to offer higher wages, or to 

petition for positions requiring higher 

skills and higher-skilled aliens that are 

commensurate with higher wage levels, 

to increase the likelihood of selection 

for cap-subject petition filings. In doing 

so, prioritization, as compared to a 

purely random selection process, may 

reduce uncertainty about selection. In 

turn, U.S. employers that might have 

petitioned for cap-subject H–1B workers 

to fill relatively lower-paid, lowerskilled positions, may be incentivized to 

hire available and qualified U.S. 

workers for those positions. 

Comments: Several commenters 

expressed support for the rule and the 

need to stop visa fraud, abuse, and 

flooding of petitions by certain staffing 

or consulting companies. One 

commenter said the proposed rule 

would disincentivize companies from 

abusing the H–1B program and harming 

U.S. workers. Other commenters stated 

that: The proposed rule would decrease 

potential visa abuse by employers and 

make sure all workers were paid 

according to their skillset as employers 

no longer would be able to lower labor 

expenses by hiring foreign workers; the 

proposed rule would have a positive 

impact on U.S. employees and collegeeducated U.S. citizens who take out 

loans for their education by making it 

harder for technology companies to 

discriminate against U.S. citizens; U.S. 

workers are being laid off in large 

numbers because corporations are 

outsourcing for profits; and the 

proposed rule is necessary because 

Indian corporations are acquiring U.S. 

jobs. 

Response: DHS agrees that this rule 

will reduce abuse and provide 

incentives for employers to use the H– 

1B program to primarily fill relatively 

lower-paid, lower-skilled positions.16

Prioritizing registrations or petitions, as 

applicable, reflecting higher wage levels 

for positions requiring higher skills and 

higher-skilled or more valued aliens 

will further Congressional intent for the 

program by helping U.S. employers fill 

labor shortages in positions requiring 

highly skilled and/or highly educated 

workers. 

a. Positive Impacts on New Graduates 

and Entry-Level Workers 

Comments: An individual commenter 

wrote that this rule would be extremely 

beneficial to international students 

graduating from U.S. universities. The 

commenter explained that, while recent 

graduates earning level I wages initially 

would be less likely to be selected in the 

lottery, many of those recent graduates 

actually would benefit from the rule 

over the long term. The commenter said 

that recent graduates who were not 

initially selected likely would gain 

additional experience in future years, 

which would make them more 

competitive for selection at higher wage 

levels. The commenter indicated that 

Science, Technology, Engineering, and 

Mathematics (STEM) graduates 

generally have three chances at the 

existing H–1B lottery, and, ideally, new 

graduates should not stay in level I 

positions for all three years. On the 

other hand, non-STEM graduates 


tkelley on DSKBCP9HB2PROD with RULES3
1680 Federal Register / Vol. 86, No. 5 / Friday, January 8, 2021 / Rules and Regulations 

17See Rebecca Corey, The coronavirus pandemic 

is straining hospitals, but many medical school 

grads can’t get jobs, yahoo!news (Mar. 27, 2020), 

https://news.yahoo.com/the-coronavirus-pandemicis-straining-hospitals-but-many-medical-schoolgrads-cant-get-jobs-194905748.html?guccounter=1

&guce_referrer=aHR0cHM6Ly93d3cu

Z29vZ2xlLmNvbS8&guce_referrer_

sig=AQAAABHJK2wibpo_XDEjXtc-zr_

UFFyWbMnPU1-_IO1uj9REueBPmgzPIg

NToSGomCcZ5DQkT3lBW1

7oeLkUKfIZzPnh3TxqqonTKW84557Cgzfle-5_

JPnq7_EzMIGQbadnRFvf7VrAscZWdh

h0IXCob34vhCnor9QYNsheYgNsFZMS (‘‘ ‘You have 

a lot of students who are unmatched who have been 

reporting working at delis, working as baristas. 

They might be teaching at a community college or 

something like that because they have an MD, but 

they can’t work clinically,’’ [Dr. Monya De, an 

internist in Los Angeles] said. ‘‘Service industry 

jobs are really common. Bartending, waitering or 

waitressing. There are a lot of unmatched students 

driving for Uber and Lyft, I will tell you that.’ ’’). 

18See William Craig, How Your Productivity is 

Related To Career Growth, Forbes (Dec. 31, 2015), 

https://www.forbes.com/sites/williamcraig/2015/12/

31/how-your-productivity-is-related-to-careergrowth/?sh=8fc20583363a (stating the ‘‘basic tenet 

of economic theory’’ that ‘‘The wage a worker earns, 

measured in units of output, equals the amount of 

output the worker can produce’’). 19See Drew Calvert, Companies Want to Hire the 

Best Employees. Can Changes to the H–1B Visa 

Program Help?, KelloggInsight (Feb. 26, 2017), 

https://insight.kellogg.northwestern.edu/article/

how-to-revamp-the-visa-program-for-highly-skilledworkers (noting ‘‘[u]nder the current system, U.S. 

companies are often discouraged from even 

attempting to hire a foreign worker, despite how 

uniquely qualified he or she might be). 

20See Muzaffar Chrishti and Stephen Yale-Loehr, 

The Immigration Act of 1990: Unfinished Business 

a Quarter-Century Later, Migration Policy Institute 

(July 2016), https://www.migrationpolicy.org/sites/

default/files/publications/1990-Act_2016_

FINAL.pdf (‘‘Sponsors of [the Immigration Act of 

1990 which created the H–1B program as it exists 

today] believed that facilitating the admission of 

higher-skilled immigrants would benefit the 

economy and increase the United States’ 

competitive edge in attracting the ‘best and the 

brightest’ in the global labor market.’’). 

already have low selection odds under 

the existing lottery and, thus, face 

difficulties finding suitable 

employment. With this proposed rule, 

however, non-STEM graduates now 

would have a probable path forward and 

would be able to negotiate with their 

employers to get H–1B sponsorship. The 

commenter added that concerns that 

new graduate employees would not be 

able to receive an H–1B visa, even from 

large technology companies, are 

unfounded, knowing firsthand that new 

graduates regularly receive job offers at 

level II wages or above from large 

technology companies. A different 

commenter stated that there are many 

new graduates with greater academic 

achievements and capability who will 

be able to get job offers at level II wages 

or above. This commenter stated that, 

for graduates unable to get job offers 

with level II wages, this proposed rule 

could incentivize them to work hard to 

prove their value and be promoted. 

Response: DHS agrees that this rule 

could be beneficial to international 

students, as the commenter explains. 

DHS recognizes that, under this final 

rule, it is less probable that USCIS will 

select registrations (or, if applicable, 

petitions) that reflect a wage level that 

is lower than the prevailing wage level 

II. DHS agrees with the comment that 

registrations (or, if applicable, petitions) 

reflecting prevailing wage levels II, III, 

and IV will have greater chances of 

being selected compared to the status 

quo. To the extent that recent foreign 

graduates, STEM-track or otherwise, in 

Optional Practical Training (OPT) can 

gain the necessary skills and experience 

to warrant prevailing wage levels II or 

above, the final rule may result in 

greater chances of selection of 

registrations (or, if applicable, petitions) 

for those beneficiaries. Further, recent 

graduates with master’s or higher 

degrees from U.S. institutions of higher 

education already benefit from the 

advanced degree exemption and cap 

selection order, as eligibility for that 

exemption increases their chance of 

selection. A registration or petition, as 

applicable, submitted on behalf of an 

alien eligible for the advanced degree 

exemption is first included in the 

submissions that may be selected 

toward the regular cap projection. If not 

selected toward the regular cap 

projection, submissions eligible for the 

advanced degree exemption may be 

selected toward the advanced degree 

exemption projection. This existing 

selection order increases the chance of 

selection for registrations or petitions 

submitted on behalf of aliens who have 

earned a master’s or higher degree from 

a U.S. institution of higher education. 

b. Positive Impacts on Healthcare 

Workforce 

Comments: An individual commenter 

and a submission from U.S. doctors 

indicated that thousands of U.S. citizen 

medical graduates have been 

unemployed because residency 

positions have been filled by foreign 

doctors on H–1B and J–1 visas. A 

submission from U.S. physicians stated 

that it is inappropriate to hire noncitizen physicians at the taxpayer’s 

expense for federally funded residency 

training positions instead of available 

and skilled U.S. physicians. The 

commenter said the proposed rule is a 

step in the right direction to 

disincentivize a trend in the physician 

residency training programs that have 

favored foreign graduates and that have 

caused the displacement of several 

thousand qualified U.S. citizen medical 

school graduates, which has been an 

ongoing problem for the past few 

decades. The commenter explained that 

this displacement cripples the U.S. 

economy as thousands of qualified U.S. 

citizen doctors with federal student loan 

debt continue to go ‘‘unmatched.’’ 

Response: DHS agrees with 

commenters that there are more U.S. 

citizens who graduate from medical 

schools each year than are matched with 

residency programs. DHS believes that 

this final rule may lead to increased 

opportunities for entry-level positions 

for available and qualified U.S. workers 

by incentivizing employers seeking capsubject H–1B beneficiaries to offer 

higher wage levels to increase the 

chance for selection. This, in turn, may 

have the effect of freeing up entry-level 

cap-subject positions for U.S. workers, 

including U.S. medical graduates in the 

event they are seeking to be employed 

in cap-subject positions.17 In turn, DHS 

hopes that increased opportunities for 

those U.S. workers will benefit the U.S. 

economy. 

c. Positive Impacts on the Economy 

Comments: An individual commenter 

in support of this rule stated that the 

proposed rule would result in higher 

salaries for the H–1B population, which 

will lead to increased spending for the 

U.S. economy. The commenter also 

wrote that, under the proposed rule, 

employers would have access to higher 

wage and more talented employees 

increasing innovation and productivity. 

Another individual commenter 

similarly said the proposed rule would 

improve innovation because it would 

favor retaining more talented and highly 

paid individuals over less talented 

workers. The commenter said wages 

serve as a proxy for talent, and the 

proposed rule helps bring and retain 

talented individuals to the United 

States. 

Response: DHS agrees with these 

commenters and believes that this rule 

may result in higher salaries for the H– 

1B population. This rule may also 

increase innovation and productivity,18

and help retain and attract talented 

aliens to the United States.19 DHS 

believes that facilitating the admission 

of more highly-paid and relatively 

higher-skilled workers ‘‘would benefit 

the economy and increase the United 

States’ competitive edge in attracting the 

‘best and the brightest’ in the global 

labor market,’’ consistent with the goals 

of the H–1B program.20

2. General Opposition to the Proposed 

Rule 

Comments generally opposing the 

proposed rule fell into various 


tkelley on DSKBCP9HB2PROD with RULES3
Federal Register / Vol. 86, No. 5 / Friday, January 8, 2021 / Rules and Regulations 1681 

21See 85 FR 69236, 69239. 

22See Jack Kelly, Recent College Graduates Have 

the Highest Unemployment Rate In Decades— 

Here’s Why Universities Are To Blame, Forbes (Nov. 

14, 2019), https://www.forbes.com/sites/jackkelly/ 

2019/11/14/recent-college-graduates-have-thehighest-unemployment-rate-in-decadesheres-whyuniversities-are-to-blame/?sh=333d181c320b. See 

also Federal Reserve Bank of New York, The Labor 

Market for Recent College Graduates (Oct. 22, 2020), 

https://www.newyorkfed.org/research/college-labormarket/college-labor-market_unemployment.html. 

This data does not differentiate college graduates 

based on citizenship, and therefore, DHS cannot 

determine the exact percentage of these college 

graduates that could serve as US workers. 

23See Darko Jacimovic, College Graduates 

Unemployment Rate in the US, What to Become 

(Nov. 25, 2020), https://whattobecome.com/blog/

college-graduates-unemployment-rate/ 

#:∼:text=The%20median%20pay%20

for%20those,in%20the%20US%20is%202.1%25 

(citing University of Washington data); Irene 

Sullivan, What Now?, The Oracle (Nov. 24, 2020), 

http://www.tntechoracle.com/2020/11/24/7833/. 

This data does not differentiate college graduates 

based on citizenship, and therefore, DHS cannot 

determine the exact percentage of these college 

graduates that could serve as U.S. workers. 

However, DHS notes that, in 2019, international 

students accounted for 5.5% of the students 

enrolled in U.S. colleges. International Student 

Enrollment Statistics, https://educationdata.org/

international-student-enrollment-statistics. 

24See Federal Reserve Bank of New York, The 

Labor Market for Recent College Graduates (Oct. 22, 

2020), https://www.newyorkfed.org/research/ 

college-labor-market/college-labor-market_

unemployment.html. This data does not 

differentiate college graduates based on citizenship, 

and therefore, DHS cannot determine the exact 

percentage of these college graduates that could 

serve as U.S. workers. 

categories: Immigration policy concerns; 

negative impacts on new graduates and 

entry-level workers, academic 

institutions, healthcare workers and 

facilities, employers, and the economy; 

and general concerns about wage-based 

selection. In addition, some comments 

fell outside of the scope of these 

categories. 

a. Immigration Policy Concerns 

Comments: A few commenters 

opposed the rule and expressed 

immigration policy concerns without 

substantive rationale, offering only that: 

the proposed rule ‘‘springs purely from 

nativism and no real concern for 

domestic workers’’; the proposed rule is 

inconsistent with U.S. founding 

principles as a refuge for those seeking 

opportunity and freedom; and imposing 

a wage-based prioritization system is 

contrary to American values and would 

harm innovation. 

Response: DHS disagrees with the 

comment that the proposal ‘‘springs 

purely from nativism and no real 

concern for domestic workers[.]’’ This 

rule does not reduce the total number of 

aliens who will receive cap-subject H– 

1B status in a given fiscal year. Instead, 

this rule will benefit those H–1B 

beneficiaries who are most highly paid 

and/or most highly skilled, relative to 

their SOC codes and areas of intended 

employment. DHS believes this rule will 

incentivize employers to offer higher 

wages and/or higher-skilled positions to 

H–1B workers and disincentivize the 

existing widespread use of the H–1B 

program to fill relatively lower-paid or 

lower-skilled positions, for which there 

may be available and qualified U.S. 

workers. In general, DHS recognizes that 

the admission of higher paid and/or 

higher skilled workers is likely to 

benefit the economy and increase the 

United States’ competitive edge in the 

global labor market.21

Further, this rule is intended to 

potentially increase employment 

opportunities for relatively lowerskilled unemployed or underemployed 

U.S. workers. Recent college graduates, 

some of who otherwise would serve as 

U.S. workers, have the highest 

unemployment rate in decades, and the 

underemployment rate (which reflects 

the rate at which workers are accepting 

jobs lower than their academic or 

experience level) is at an all-time high.22

Roughly 53 percent of recent college 

graduates, some of who could 

potentially work in these jobs, are 

currently unemployed or 

underemployed.23 While the overall 

unemployment rates for college 

graduates is 3.8 percent, the 

unemployment rate is higher for 

graduates with majors in some fields 

common to the H–1B program such as 

computer science (5.2 percent), 

mathematics (4.9 percent) and 

information systems & management (4.9 

percent).24 This rule is intended to 

potentially benefit the population of 

unemployed or underemployed U.S. 

workers. DHS further disagrees that this 

rule is inconsistent with U.S. founding 

principles as a refuge for those seeking 

opportunity and freedom, and that 

instituting a ranking system is contrary 

to American values and would harm 

innovation. First, the H–1B program is 

a temporary, employment-based 

nonimmigrant program and not a form 

of humanitarian relief. Additionally, by 

maximizing H–1B cap allocations, so 

that they more likely would go to the 

best and brightest workers, DHS 

believes that this rule likely would 

promote opportunity, innovation, and 

development. 

b. Negative Impacts on New Graduates 

and Entry-Level Workers, Academic 

Institutions, Healthcare Workers and 

Facilities, Employers, and the Economy 

Multiple commenters said the 

proposal would have negative impacts 

on new graduates and entry-level 

workers, academic institutions, 

healthcare workers and facilities, 

employers, and the economy. 

i. New Graduates and Entry-Level 

Workers 

Comments: Commenters stated, 

without substantive rationale, that the 

proposed rule would negatively impact 

this population because: New foreign 

graduates would be disadvantaged by 

this rule; the proposed rule would 

prevent the future growth of new foreign 

graduates in the workplace; the 

proposed rule would be unfair to 

immigrants who earn lower wages; it 

takes time to be promoted from entry 

level to a more senior level; it is ‘‘too 

difficult for most people to earn that 

much’’; the proposed rule would 

dramatically reduce access to the H–1B 

visa program for early career 

professionals, including those who have 

completed master’s or doctoral degrees 

at U.S. colleges and universities; the 

proposed rule would make it nearly 

impossible for entry-level employees 

with degrees in STEM majors to be 

eligible for H–1Bs; non-STEM graduates 

would have a more difficult time 

obtaining H–1B classification under the 

proposed rule; the rule would unfairly 

discriminate against aliens who work in 

areas related to humanities, arts, or 

accounting that do not receive high 

starting wages; the proposed rule would 

greatly decrease the number of H–1B 

visas that would be available to 

educators, translators, and other 

specialty positions; doctors who 

recently graduated and entered medical 

residency programs would have no 

chance of obtaining H–1B classification 

under this proposed rule; the rule 

would negatively impact U.S. 

biomedical research, as it would make 

it difficult for young scientists to study 

and conduct health research in the 

United States; the computer science 

industry requires experience to get to a 

higher level, which is something new 

graduates do not typically have; it is 

harder to earn higher wages quickly in 

certain industries, such as mechanical 

engineering or medicine; basing the 

selection on wage levels would be 

disadvantageous to people who work for 

small-sized companies, which offer 

lower wages; the proposed rule would 

send a message that the United States 

does not welcome talented foreign 

students; the rule would divide 

international students because everyone 

would be ‘‘considering the interests of 

their own’’; and pushing entry-level 

workers out in the beginning of their 

careers disobeys a fundamental 

economics principle, which states that 


tkelley on DSKBCP9HB2PROD with RULES3
1682 Federal Register / Vol. 86, No. 5 / Friday, January 8, 2021 / Rules and Regulations 

25U.S. Department of Homeland Security, U.S. 

Citizenship and Immigration Services, Office of 

Policy and Strategy, Policy Research Division, Wage 

Level of H–1B Initial Employment Physician 

Approvals (Cap-Subject and Cap-Exempt), Fiscal 

Year 2019, Database Queried: PETAPP, Report 

Created: 11/18/2020, Systems: C3 via SASPME, 

DOL OFLC Performance DATA H1B for 2019. Note 

that the tables for ‘‘Wage Level of H–1B Initial 

Employment Physicians Approvals’’ and ‘‘Wage 

Level of H–1B Initial Employment Dentists 

Approvals’’ show approval counts for the cap year 

in which the petitions were filed. For these tables, 

DHS used the approval counts for FY 2019. 

Whereas the tables for ‘‘Wage Level of Select Capsubject H–1B Physicians Approvals’’ and ‘‘Wage 

Level of Select Cap-subject H–1B Dentists 

Approvals’’ show approval counts for the cap year. 

For these tables, DHS used the cap counts for Cap 

Year 2020. For purposes of this data, DHS used the 

DOT code identified on the H–1B petition, namely, 

DOT codes 070–072 for physicians, surgeons, and 

dentists. The DOT Code is a three-digit 

occupational group for professional, technical, and 

managerial occupations and fashion models that 

can be obtained from the Dictionary of 

Occupational Titles. DHS then linked petition data 

to LCA data for wage level information. 26See 8 CFR 214.2(f)(10)(ii). 

laborers are underpaid in the early 

stage, but will make more with more 

experience and skillsets. 

Multiple commenters said the 

proposal would have negative impacts 

on new foreign graduates and entrylevel workers, and they provided 

substantive rationale in support of those 

assertions. Specifically, several 

commenters, including a form letter 

campaign, said the rule would have a 

‘‘direct and negative’’ impact on collegeeducated foreign-born professionals by 

‘‘dramatically reducing’’ access to the 

H–1B visa program for early-career 

professionals because no aliens who are 

paid a level I wage would be selected to 

submit a petition. A trade association 

stated that early-career workers in 

science, math, and engineering might be 

shut out by the proposed rule, but that 

those are the workers the U.S. economy 

needs. Several commenters, including a 

university, a professional association, 

and a joint submission, argued that the 

proposed rule would reduce access to 

the H–1B program, negatively impacting 

graduating international students. A 

university stated that the proposed rule 

indirectly would affect F–1 and J–1 

students and scholars by removing a 

pathway to employment after 

completion of educational or training 

experiences in the United States, which 

would also negatively impact the 

economy. The university argued that 

almost all F–1 and J–1 visa holders enter 

at level I wages. 

Response: DHS disagrees with the 

assertions that this rule will either 

preclude or essentially preclude H–1B 

status for recent graduates, entry-level 

foreign workers, and young alien 

professionals. In general, registrations 

(or petitions, if applicable) will be 

selected according to the wage level that 

the proffered wage equals or exceeds. 

Therefore, if an employer chooses to 

offer a recent foreign graduate a wage 

that equals or exceeds a particular wage 

level, the registration will be grouped at 

that wage level, regardless of the 

beneficiary’s experience level or the 

requirements of the position. Further, as 

explained in the proposed rule, DHS 

believes that a purely random selection 

process is not optimal, and selection 

based on the highest wage level that a 

proffered wage equals or exceeds is 

more consistent with the primary 

purpose of the statute. DHS 

acknowledges that, under this rule, in 

years of excess demand, relatively 

lower-paid or lower-skilled positions 

will have a reduced chance of selection. 

However, DHS believes that selection in 

this manner is consistent with the 

primary purpose of the statute. 

DHS further disagrees with the 

assertion that this rule will preclude 

recent foreign medical graduates from 

obtaining H–1B status. Importantly, 

according to DHS data, in FY 2019, 

more than 93 percent of H–1B petitions 

approved for initial employment for 

physicians, surgeons, and dentists were 

cap-exempt and thus not subject to the 

H–1B cap selection process.25 Thus, it is 

not accurate to say that recent foreign 

medical graduates, who may seek initial 

employment as physicians, would have 

‘‘no chance’’ of obtaining H–1B status 

under this rule. DHS acknowledges that, 

under this rule, in years of excess 

demand, in the infrequent situation of 

recent foreign medical graduates seeking 

employment with a cap subject 

employer, recent foreign medical 

graduates may face a reduced chance of 

selection for cap-subject H–1B visas. 

However, because a significant majority 

of H–1B petitions filed for recent foreign 

medical graduates are cap-exempt, and 

thus not affected by this rule, this 

reduction likely will affect a minimal 

population, if any, of recent medical 

graduates. Further, as explained in the 

proposed rule, DHS believes that a 

random selection is not optimal, and 

selection based on the highest wage 

level that a proffered wage equals or 

exceeds is more consistent with the 

primary purpose of the statute. 

In terms of STEM-specific concerns, 

DHS disagrees with comments that this 

rule will make it ‘‘harder’’ or ‘‘nearly 

impossible’’ for employers to hire entrylevel employees with degrees in STEM 

majors. These types of potential foreign 

workers have multiple avenues to obtain 

employment in the United States. In 

general, foreign STEM graduates can 

apply for the regular 12-month OPT 

plus an additional 24-month extension 

of their post-completion OPT.26 The 

additional 24-month extension of OPT 

is available only to foreign STEM 

graduates. During the 3-year cumulative 

OPT period, such a graduate can gain 

significant training and work experience 

with a U.S. employer and can 

demonstrate their value to that 

employer. If the employer wants to 

continue their employment by way of 

H–1B classification, then the employer 

can choose to offer the worker a wage 

that will maximize their chance of 

selection. Additionally, an employer 

could directly petition for an 

employment-based immigrant visa for 

the alien at any time. There is no 

statutory or regulatory requirement that 

an alien admitted on a F–1 

nonimmigrant visa go through OPT and/ 

or the H–1B program before being 

petitioned for an immigrant visa. 

Concerning the comments about nonSTEM graduates who work in the 

humanities, arts, accounting, education, 

or other areas that generally may not 

receive as high of starting wages as other 

occupations, DHS does not believe these 

graduates will be unfairly impacted by 

this rule. Because USCIS will be ranking 

and selecting registrations (or petitions) 

generally based on the highest OES 

prevailing wage level that the proffered 

wage equals or exceeds for the relevant 

SOC code, this method of ranking takes 

into account wage variations by 

occupation. 

ii. Academic Institutions 

Comments: A few individual 

commenters generally stated that the 

proposed rule would harm schools and 

universities. Multiple commenters, 

including a university, law firm, and 

individual commenters, stated that this 

rule would negatively impact U.S. 

universities’ ability to recruit 

international students, which would 

affect enrollments, because U.S. 

institutions would be less attractive due 

to the lower possibility of remaining in 

the United States to work after 

completion of their studies or at the 

conclusion of their OPT. Similarly, 

several commenters said the proposal 

would make it difficult for universities 

to attract top talent that would 

contribute to the U.S. economy. A trade 

association stated that the rule would 

restrict the ability of graduating talent to 

switch from F–1 student status to H–1B 

status, particularly when operating in 

conjunction with the DOL Interim Final 

Rule (IFR), Strengthening Wage 

Protections for the Temporary and 

Permanent Employment of Certain 


tkelley on DSKBCP9HB2PROD with RULES3
Federal Register / Vol. 86, No. 5 / Friday, January 8, 2021 / Rules and Regulations 1683 

27U.S. Department of Labor, Employment and 

Training Administration, Strengthening Wage 

Protections for the Temporary and Permanent 

Employment of Certain Aliens in the United States, 

85 FR 63872 (Oct. 8, 2020). 

28U.S. Department of Homeland Security, U.S. 

Immigration and Customs Enforcement, 

Establishing a Fixed Time Period of Admission and 

an Extension of Stay Procedure for Nonimmigrant 

Academic Students, Exchange Visitors, and 

Representatives of Foreign Information Media, 85 

FR 60526 (Sept. 25, 2020). 

Aliens in the United States (DOL IFR).27

Another commenter stated that the DOL 

IFR also is aimed at pricing 

international students and others out of 

the U.S. labor market, while the Student 

and Exchange Visitor Program proposed 

rule 28 to limit the time students are 

allowed to stay in the United States 

appears designed to deter foreign 

students from coming to U.S. 

universities. 

A trade association stated, without 

evidence, that since graduating 

international students are unlikely to 

find employers who are willing to pay 

them the same rate as their medianwage workers, this would lead to U.S.- 

educated international students taking 

their knowledge and skills elsewhere. A 

university said that, if the proposed rule 

were implemented, the United States 

would lose ‘‘advanced science, 

technology, engineering, and 

mathematics knowledge and talent’’ 

because international students would 

choose to pursue their education in 

countries with more favorable 

immigration policies. Another 

commenter claimed that international 

students would study elsewhere if they 

could not identify employment 

opportunities after graduation, which 

would ‘‘crippl[e] a critical pipeline of 

future community members, workers, 

innovators and entrepreneurs.’’ A few 

commenters stated that, under this rule, 

the United States would lose money, 

talent, and inventiveness by reducing 

the employment potential of foreign 

students upon graduation from a U.S. 

educational institution, and the United 

States eventually would lose 

attractiveness and competitiveness 

because international students would go 

elsewhere. Some commenters provided 

specific figures to detail the 

contributions of foreign enrollment at 

U.S. universities. Specifically: 

Education service exports ranked sixth 

among service exports in 2019 

according to data released by the U.S. 

Department of Commerce’s Bureau of 

Economic Analysis; international 

students studying in the United States 

added an estimated $41 billion to the 

economy and supported over 458,000 

jobs during the 2018 through 2019 

academic year; international students 

make up 5.5 percent of the total U.S. 

higher education population and 

contributed $44.7 billion to the U.S. 

economy in 2018; international students 

have founded approximately onequarter of U.S. start-up companies 

worth $1 billion or more; the Institution 

for International Education (IIE) reports 

that international students contributed 

$482.5 million to the State of Minnesota 

during 2018 through 2019, supporting 

4,497 jobs; international students and 

scholars contributed an estimated 

$304.2 million to the local Ithaca, New 

York, economy and supported nearly 

4,000 jobs during the 2018 through 2019 

academic year; and, in one commenter’s 

experience, foreign students paid more 

than $10,000 per year full tuition 

compared to less than $4,000 for in-state 

residents, which provided major 

subsidies for low income resident 

students. 

Some commenters expressed that this 

is not the time to be driving students 

away, as State and college/university 

budgets have suffered greatly as a result 

of COVID–19. One commenter cited 

data indicating a ‘‘shocking decline’’ in 

international student enrollment at U.S. 

institutions of higher education for the 

Fall 2020 semester, as well as a study 

indicating that the overall economic 

impact generated by international 

students had already started to decline 

in 2019, down to $38.7 billion. The 

commenter said the declining 

enrollment numbers for 2020 are likely 

to perpetuate a large economic impact 

as we continue to deal with the 

economic fallout of the COVID–19 

pandemic. A professional association 

stated that the proposed regulation 

would have a ‘‘monumentally negative’’ 

effect on U.S. colleges and universities 

at a time when those institutions would 

be reeling from the impact of the 

COVID–19 pandemic. The commenter 

cited statistics indicating that, in the 

current school year, new enrollment of 

international students dropped 43 

percent because of COVID–19. The 

commenter concluded that the COVID– 

19 pandemic, uncertainty about 

immigration status, and ‘‘anti-immigrant 

rhetoric[,]’’ compounded with this rule 

that would further destabilize the career 

progression of foreign students by 

eliminating a legal pathway to 

temporary employment opportunities in 

the United States post-graduation, 

would create a ‘‘perfect storm’’ that 

would devastate the U.S. college and 

university system for years to come. 

Several commenters, including a 

university, advocacy group, and 

individual commenters, said restricting 

the H–1B program for foreign students, 

while competitor nations seek to expand 

their ability to attract international 

students, would lead talented students 

to choose other countries of study and 

decrease enrollments in U.S. 

institutions. One of these commenters 

said countries such as Canada and 

Germany already are seeing increases in 

international student enrollment as U.S. 

restrictions to international students 

have led to waning interest from the 

future CEOs, inventors, and researchers 

of the world. An individual commenter 

said universities essentially would be 

training laborers for other countries. 

Some commenters stated that colleges 

and universities rely, in particular, on 

foreign students who pay full tuition to 

help make up for declining Federal and 

State support and to subsidize the cost 

of education for U.S. students. An 

attorney stated that U.S. colleges, 

universities, and communities benefit 

financially from the attendance of 

foreign students, typically in F–1 

foreign student nonimmigrant status or 

J–1 exchange visitor nonimmigrant 

status. The commenter said the 

economic and intellectual advancement 

of educational institutions and their 

communities is enhanced by the 

presence of these students from other 

countries. 

A university stated that international 

students and scholars are essential to a 

university’s makeup, as students and 

faculty benefit from exposure to 

intercultural differences and the 

leadership opportunities that arise from 

global collaborations. Another 

commenter stated that foreign national 

researchers and professors provide the 

needed diversity to help educate 

students to become the professionals 

they need, as they cannot compete 

globally if they do not have the ability 

to adapt culturally. 

An individual stated that this rule 

would make it impossible for some 

colleges to fill teaching positions that 

they cannot fill with qualified U.S. 

workers. For example, the commenter 

stated that North Dakota colleges are not 

able to pay higher than the level I wage 

as that is the average salary paid to all 

of its beginning professors and 

researchers, and this rule would result 

in many of North Dakota colleges having 

unfilled teaching positions and a 

decrease in higher level class offerings, 

particularly in STEM fields, putting a 

strain on education in the state. 

Multiple commenters offered similar 

concerns, but at other levels of academic 

institutions and owing to their lessdesirable locations. 

Response: DHS appreciates the 

academic benefits, cultural value, and 

economic contributions that aliens make 

to academic institutions and local 


tkelley on DSKBCP9HB2PROD with RULES3
1684 Federal Register / Vol. 86, No. 5 / Friday, January 8, 2021 / Rules and Regulations 

29See Daniel Obst and Joanne Forster, 

Perceptions of European Higher Education in Third 

Countries, Outcome of a Study by the Academic 

Cooperation Association, Country Report: USA, 

Institute of International Education, https://

www.iie.org/Research-and-Insights/Publications/ 

International-Students-in-the-United-States. 

30See 8 CFR 214.2(f)(10)(ii). 

31See Muzaffar Chrishti and Stephen Yale-Loehr, 

The Immigration Act of 1990: Unfinished Business 

a Quarter-Century Later, Migration Policy Institute 

(July 2016), https://www.migrationpolicy.org/sites/ 

default/files/publications/1990-Act_2016_

FINAL.pdf (‘‘Sponsors of [the Immigration Act of 

1990 which created the H–1B program as it exists 

today] believed that facilitating the admission of 

higher-skilled immigrants would benefit the 

economy and increase the United States’ 

competitive edge in attracting the ‘best and the 

brightest’ in the global labor market.’’). 

32See INA section 214(g)(5), 8 U.S.C. 1184(g)(5). 

33See INA section 214(g)(5), 8 U.S.C. 1184(g)(5). 

34U.S. Department of Homeland Security, U.S. 

Citizenship and Immigration Services, Office of 

Policy and Strategy, Policy Research Division 

(PRD), Cap-Exempt H–1B Approvals in Certain 

Categories, Dec. 9, 2020. This data shows the 

following breakdown for cap-exempt H–1B 

approvals: 20,097 for institution of higher 

education; 11,847 for affiliated or related non-profit 

entities; 5,131 for non-profit research organizations 

or government research organization; and 3,998 for 

beneficiaries employed at a qualifying cap exempt 

entity. 

communities throughout the United 

States. DHS does not believe that this 

rule will negatively impact the ability of 

U.S. colleges and universities to recruit 

international students. Nor will the rule 

impact the ability of international 

students to study in the United States, 

which is the basis of their admission to 

the United States in that status. While 

increased employment opportunities, 

both in the United States and abroad, 

may be a factor in deciding whether to 

study in the United States, the 

reputation of the academic institutions 

themselves is also an important factor 

for the great majority of those choosing 

to study in the United States.29 Further, 

DHS notes that international students 

will continue to have significant 

employment opportunities in the United 

States under this rule. First, this rule 

has no impact on OPT, which allows for 

12 months of employment for most 

aliens admitted in F–1 student status, 

plus an additional 24-month extension 

of post-completion OPT available only 

to STEM graduates.30 In addition, with 

the current random selection process, 

even the most talented foreign student 

may have less than a 50 percent chance 

of selection. This rule will increase the 

chance of employment at the higher 

wage levels and thus may facilitate the 

selection of the best and brightest 

students for cap-subject H–1B status. To 

the extent that that this change does 

negatively affect the potential of some 

colleges and universities to recruit 

international students, DHS believes 

that any such harm will be outweighed 

by the benefits that this rule will 

provide for the economy overall.31

Facilitating the admission of higherskilled foreign workers, as indicated by 

their earning of wages that equal or 

exceed higher prevailing wage levels, 

would benefit the economy and increase 

the United States’ competitive edge in 

attracting the ‘‘best and the brightest’’ in 

the global labor market, consistent with 

the goals of the H–1B program discussed 

in the NPRM. 

Further, DHS disagrees that this rule 

will make it ‘‘impossible’’ for academic 

institutions to fill teaching and research 

positions. Congress already exempted 

from the annual H–1B cap aliens who 

are employed or have received offers of 

employment at institutions of higher 

education, nonprofit entities related to 

or affiliated with institutions of higher 

education, nonprofit research 

organizations or government research 

organizations.32 Therefore, many 

petitions for academic institutions will 

not be affected by this rule.33 In FY 2020 

alone, USCIS approved over 41,000 

petitions for petitioners that qualified 

under one of these cap exemptions.34

These cap exemptions mitigate these 

commenters’ concerns or 

misunderstanding of the H–1B program. 

Comments about the DOL IFR and the 

Student and Exchange Visitor Program 

proposed rule are out of scope, so DHS 

will not address them. 

iii. Healthcare Workforce and Facilities 

(a) Impact on Healthcare Workers 

Comments: Some commenters 

expressed concern that the rule could 

prevent qualified and highly skilled 

entry-level health care workers and 

recent foreign-born graduates from 

medical school from obtaining an H–1B 

visa. A professional association said this 

proposal would reduce the overall 

number of international medical 

graduates (IMGs) practicing in the 

United States, also stating that pricing 

H–1B visa holders out of the physician 

employment market would only 

exacerbate ongoing physician shortages 

and worsen barriers to care for patients. 

Another professional association cited 

data forecasting an increasing physician 

shortage and said H–1B physicians 

fulfill a ‘‘vital and irreplaceable role.’’ 

The commenter said stringent 

performance and pay thresholds already 

exist that must be met to even be 

considered for an H–1B visa and placing 

additional wage barriers on the cap 

would garner no benefit and, instead, 

would harm U.S. patients and health 

care systems. A university and an 

individual commenter stated that 

physicians enter the field with a level I 

wage, despite high levels of education 

and training, and argued that, under the 

proposal, it would be ‘‘virtually 

impossible’’ for a new physician to 

obtain H–1B unless they are employed 

by a cap-exempt institution. The 

university and the commenter cited a 

2016 Journal of the American Medical 

Association (JAMA) study, which found 

that 29 percent of physicians were born 

outside of the United States, helping to 

fill the physician shortage, and that this 

rule ignores problems like this. Another 

professional association stated that it is 

an incorrect assumption that skill level 

is definitively associated with wage 

amount, as there are many situations 

where a highly skilled H–1B physician 

may choose to accept a lower wage (e.g., 

expand their skillset, altruistic motives, 

the potential to gain lawful permanent 

residency in a shorter time span). 

Therefore, the proposed rule would 

create a false presupposition that would 

stop highly qualified physicians from 

practicing in less affluent institutions. 

Thus, the proposed rule would create a 

situation where much needed physician 

positions remain vacant, only wealthy 

medical conglomerates are able to afford 

to sponsor H–1B physicians, or wages 

become so inflated that far fewer H–1B 

physicians can be hired. A few 

individuals noted that a number of rural 

and/or underserved communities rely 

on foreign trained dentists, and that this 

rule would make it difficult to recruit 

dentist in rural and/or underserved 

areas. 

A couple of professional associations 

said the rule potentially could eliminate 

the H–1B visa option for recent 

graduates, including IMGs and 

postdoctoral researchers, with serious 

consequences for the U.S. healthcare 

workforce. One of these commenters 

said IMGs compose nearly one-fourth of 

the U.S. physician workforce and onefourth of the country’s resident 

physicians in training. The commenter 

stated that, due to this rule, these highly 

qualified physicians may choose to go to 

other countries rather than risk being 

unable to complete training 

requirements, build up a medical 

practice, or perform clinical duties. 

A professional association wrote 

specifically about the impacts of the 

rule on the availability of primary care 

physicians. The commenter cited data 

indicating that the United States is 

facing a primary care physician shortage 

and stated that IMGs play a vital role in 

filling this gap. The commenter went on 

to say that family medicine and other 

primary care physicians typically have 

lower annual salaries than specialty 


tkelley on DSKBCP9HB2PROD with RULES3
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35See INA section 214(g)(5), 8 U.S.C. 1184(g)(5); 

8 CFR 214.2(h)(8)(iii)(F). 

36See INA section 212(e), 8 U.S.C. 1182(e); INA 

section 248, 8 U.S.C. 1258. 

37See INA section 214(l), 8 U.S.C. 1184(l). See 

also 8 CFR 212.7(c)(9). 

38See INA section 214(l)(2)(A), 8 U.S.C. 

1184(l)(2)(A). 

39See INA section 214(l)(1)(B), 8 U.S.C. 

1184(l)(1)(B). 

physicians, and, since this proposal 

favors H–1B petitioners with higher 

annual salaries, it also may discriminate 

against family physicians unfairly. 

Response: DHS disagrees with the 

assertion that this rule will prevent 

recent medical or dental graduates from 

obtaining H–1B status, as Congress 

already exempted from the H–1B cap 

any alien who is employed or has 

received an offer of employment at an 

institution of higher education, a related 

or affiliated non-profit entity, or a nonprofit research organization or a 

governmental research organization.35

As stated above, in FY 2019, more than 

93 percent of H–1B petitions approved 

for initial employment for physicians, 

surgeons, and dentists were cap-exempt 

and, thus, not subject to the H–1B cap 

selection process. Because a significant 

majority are not affected by this rule, 

this reduction likely will affect a 

minimal population, if any, of recent 

foreign medical graduates. 

In addition, Congress has established 

programs meant to encourage certain 

recent foreign medical graduates to 

serve in the United States as H–1B 

nonimmigrants. These programs are 

exempt from the annual caps and 

unaffected by this rule. Certain J–1 

exchange visitors are subject to a 2-year 

foreign residence requirement under 

INA section 212(e), 8 U.S.C. 1182(e), 

which requires them to return to their 

country of nationality or country of last 

residence for at least two years in the 

aggregate prior to being eligible to apply 

for an immigrant visa; adjustment of 

status; or a nonimmigrant visa, such as 

an H–1B visa (with limited 

exceptions).36 However, INA section 

214(l), 8 U.S.C. 1184(l), contains 

provisions authorizing waivers of the 2- 

year foreign residence requirement for 

certain aliens, including foreign medical 

graduates who agree to work full-time 

(at least 40 hours per week) in H–1B 

classification for not less than three 

years in a shortage area designated by 

the U.S. Department of Health and 

Human Services (HHS) with a request 

from an interested federal government 

agency or state agency of public health 

or its equivalent, or with the U.S. 

Department of Veterans Affairs (VA).37

The petition requesting a change to H– 

1B nonimmigrant status for these 

physicians is not subject to the 

numerical limitations contained in INA 

section 214(g)(1)(A), 8 U.S.C. 

1184(g)(1)(A).38 While participation in 

the Conrad State 30 program (relating to 

waivers based on requests from a state 

agency of public health or its equivalent 

for service in an HHS-designated 

shortage area) is limited to 30 

participants per eligible jurisdiction 

annually, the other programs have no 

limits on the number of participants.39

Further, DHS disagrees with the 

comment that this rule may unfairly 

discriminate against family physicians 

and other primary care physicians who 

typically have lower annual salaries 

than specialty physicians. In general, 

family physicians or other primary care 

physicians have different SOC codes 

than specialty physicians. As DOL 

prevailing wage level calculations 

generally differ by SOC codes, when 

wage data is available, the 

corresponding wage level would 

necessarily account for the different 

occupational classification for primary 

care physicians as opposed to other 

types of physicians. When such wage 

level data is unavailable, wage level 

ranking will be based on the skill, 

education, and experience requirements 

for the position, again taking into 

account the particulars of the relevant 

occupational classification, such that 

registrations or petitions for primary 

care physicians will be ranked in 

comparison to the normal requirements 

for primary care physicians and not in 

comparison to other types of physicians. 

As such, DHS does not believe that this 

rule will disadvantage registrations or 

petitions for primary care physicians or 

any other subset of physicians. 

(b) Rural and/or Underserved 

Communities 

Comments: Multiple commenters, 

including several professional 

associations, said the rule would 

negatively impact the U.S. health care 

system in areas that are rural and/or 

underserved where IMG and non-citizen 

physicians are particularly essential. A 

professional association cited data 

indicating that IMGs are more likely to 

become primary care physicians and 

practice in rural and other underserved 

areas where physician shortages are the 

direst and that rely heavily on family 

physicians for ambulatory and 

emergency care. A couple of 

professional associations similarly said 

IMGs typically serve in rural and/or 

medically underserved communities, 

providing care to many of our country’s 

most at-risk citizens. One of these 

commenters stated that, although 20 

percent of the country’s population 

resides in rural areas, fewer than 10 

percent of U.S. physicians actually 

practice in those communities, resulting 

in over 23 million rural Americans 

living in federally designated primary 

medical Health Professional Shortage 

Areas (HPSA). This commenter also 

stated that recently graduated H–1B 

physicians participating in pipeline 

programs in the beginning of their 

careers, such as Conrad State 30, fall 

within the first and second tiers of the 

prevailing wage determination. 

Therefore, the proposed rule would 

create a system that removes physicians 

who are willing and ready to practice in 

medically underserved areas and cuts 

off those patients who are most in need 

from receiving physician care. 

A professional association stated that 

Federally Qualified Healthcare Centers 

(FQHC), institutions that serve highrisk, medically underserved populations 

in HPSAs, do not qualify for exemption 

from the H–1B visa cap. To fill the 

physician gap, FQHCs utilize H–1B 

physicians to care for patients in these 

health care underserved areas. The 

commenter stated that, if the proposed 

rule is enacted, these FQHCs would be 

unable to obtain early-career H–1B 

physicians and are unlikely to be able 

to compete with larger, more affluent 

organizations to offer a higher proffered 

wage to increase their chances of 

obtaining H–1B physician candidates 

and reducing the physician shortages 

identified by HPSA data. 

A company stated that rural hospitals 

and other health care facilities rely 

heavily on healthcare-staffing 

companies to fill their staffing needs, 

but the rates staffing companies are able 

to charge rural facilities usually are 

much lower than the rates they are able 

to charge facilities in affluent 

metropolitan areas. Thus, the rule 

would cause staffing companies to place 

their professionals where the staffing 

companies can charge the highest rates, 

so that staffing companies can maintain 

sufficient profitability and ensure that 

their workers are able to obtain H–1B 

visas. The commenter concluded that 

the rule would decrease the supply of 

healthcare labor to rural and other 

underserved communities, where it is 

needed most. 

Response: DHS acknowledges the 

important role that early career and 

entry level foreign physicians may play 

in providing health care in rural and/or 

underserved communities. As explained 

in response to the previous comments, 

Congress has established programs 

meant to direct foreign medical 

graduates to those communities. 


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40See INA section 214(l)(1)(B), 8 U.S.C. 

1184(l)(1)(B). 

41See INA section 203(b)(2)(B)(ii)(I), 8 U.S.C. 

1153(b)(2)(B)(ii). 

42U.S. Department of Homeland Security, U.S. 

Citizenship and Immigration Services, Office of 

Policy and Strategy, Policy Research Division, Wage 

Level of H–1B Initial Employment Physician 

Approvals (Cap-Subject and Cap-Exempt), Fiscal 

Year 2019, Database Queried: PETAPP, Report 

Created: 11/18/2020, Systems: C3 via SASPME, 

DOL OFLC Performance DATA H1B for 2019 

(showing that, in FY 2019, more than 93 percent of 

H–1B petitions approved for initial employment for 

physicians, surgeons, and dentists were cap-exempt 

and not subject to the H–1B cap selection process). 

Also as noted above, physicians 

whose nonimmigrant status is changed 

to H–1B through their participation in 

any of the three waiver programs in INA 

section 214(l), 8 U.S.C. 1184(l), are not 

subject to the annual H–1B caps. The 

Conrad State 30 program (relating to 

waivers based on requests from a state 

agency of public health or its equivalent 

for service in an HHS-designated 

shortage area) is limited to 30 

participants per eligible jurisdiction 

annually.40 However, there are no 

annual limits on the number of aliens 

who can obtain a waiver through service 

in an HHS-designated shortage area 

based on the request of a federal 

interested government agency. Since 

these programs are not subject to the 

annual H–1B caps, they will not be 

affected by this rule and the programs 

will continue to provide a pipeline for 

these physicians to serve in HHSdesignated shortage areas. 

Congress has established a similar 

statute in the immigrant context, which 

also channels physicians to serve in 

HHS-designated shortage areas, 

commonly known as the Physician 

National Interest Waiver Program.41

That program has no limits on the 

number of physicians who can 

participate in a given fiscal year, though 

there are numerical limitations on the 

number of employment-based 

immigrant visas that can be allocated 

annually. This program is unaffected by 

this rule and will continue to provide a 

pipeline for an unlimited number of 

physicians to serve in HHS-designated 

shortage areas. 

DHS agrees with the commenters who 

stated that medical institutions in rural 

and/or underserved areas may not be 

institutions of higher education, related 

or affiliated non-profit entities, or nonprofit research organizations or 

governmental research organizations. As 

a result, aliens who are employed by or 

who have received an offer of 

employment from such medical 

institutions may not be exempt from the 

annual H–1B numerical limitations 

under INA section 214(g)(5), 8 U.S.C. 

1184(g)(5). However, some of those 

medical institutions do meet the 

requirements to be cap-exempt, and 

their employees will not be subject to 

the numerical limitations.42

DHS acknowledges that some alien 

physicians who currently serve in rural 

and/or underserved areas as H–1B 

nonimmigrants are not participating in 

the waiver programs of INA section 

214(l), 8 U.S.C. 1184(l), and they are not 

working for cap-exempt employers. 

These physicians may be in positions 

categorized as prevailing wage levels I 

or II, depending on their individual 

circumstances. However, such 

physicians may avail themselves of 

alternative pathways to serve in these 

areas such as the Physician National 

Interest Waiver Program and not be 

subject to the annual H–1B numerical 

limitations. 

Further, as with all other cap-subject 

H–1B visas, DHS will rank and select 

registrations for these positions 

generally according to the highest OES 

prevailing wage level that the proffered 

wage equals or exceeds, which 

necessarily takes into account the area 

of intended employment when such 

wage level data is available. Where there 

is no current OES prevailing wage 

information for the proffered position, 

which DHS recognizes is the case for 

some physician positions based on 

limitations in OES data, the registrant 

would follow DOL guidance on 

prevailing wage determinations to 

determine which OES wage level to 

select on the registration. The 

determination of the appropriate wage 

level in those instances would be based 

on the skill, education, and experience 

requirements of the position, and 

generally does not take into 

consideration the area of intended 

employment. Therefore, DHS does not 

believe that this rule necessarily will 

disadvantage rural and/or underserved 

communities relative to registrations or 

petitions based on offers of employment 

in other areas. 

(c) COVID–19 

Comments: Several commenters 

stated that the rule would have 

particularly concerning impacts on the 

U.S. healthcare workforce as the United 

States grapples with the COVID–19 

pandemic. A professional association 

said these visa cap requirements come 

at a most inopportune time, as the 

United States sustains some of the 

highest rates of COVID–19 cases 

worldwide and depends on early career 

physicians to serve on the frontlines. 

The commenter said H–1B physicians 

have played a large role in caring for 

those who are seriously ill from COVID– 

19, including those facing health 

complications following recovery from 

this disease. Similarly, another 

professional association cited data 

indicating that, currently, the States 

where H–1B physicians are providing 

care are also those with some of the 

highest COVID–19 case counts. 

Response: DHS certainly appreciates 

the significant contributions of all 

healthcare professionals, especially 

during the current COVID–19 pandemic, 

but DHS continues to note that many 

foreign medical professionals are 

eligible for cap-exempt H–1B status and 

are not impacted by this rule. 

Additionally, DHS believes that this 

rule will provide benefits to the greater 

U.S. workforce that outweigh any 

potential negative impacts on the 

relatively small subset of H–1B capsubject healthcare workers. 

For example, DHS received 

submissions from unemployed and 

underemployed U.S. citizen medical 

graduates who attested to the decadeslong problem of displacement of several 

thousands of qualified U.S. citizen IMGs 

and graduates of U.S. medical schools 

for federally funded residency training 

positions. This rule may benefit these 

unemployed and underemployed U.S. 

citizen medical graduates by potentially 

increasing employment opportunities. 

Further, DHS notes that this final rule 

is not a temporary rule that is limited in 

duration to the COVID–19 pandemic; 

moreover, this final rule will not have 

immediate impact on H–1B employment 

as it will first be applied to the FY 2022 

registration and selection process, the 

beneficiaries of which will not be able 

to begin employment in H–1B 

classification until October 1, 2021. 

(d) Healthcare Facilities 

Comments: A professional association 

stated that larger, wealthier companies 

are much more likely to be able to pay 

augmented salaries to increase their 

chances of selection for filing of H–1B 

cap-subject petitions. In comparison, 

smaller, less affluent medical practices 

would not be able to compete with these 

large conglomerates, despite having a 

much greater need for physicians. As 

such, larger hospital systems would be 

able to buy H–1B visas for their 

physicians, leaving mid to small size 

practices even more understaffed. 

A trade association stated that its 

members in the healthcare industry are 

very concerned about the impact this 

rule would have on their ability to 

continue hiring H–1B foreign medical 

graduates, who are critical for 

healthcare providers to meet the needs 

of their patients. The commenter said 


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43See Wayne Lipton, Is a Bigger Medical Practice 

Always Better?, Physicians Practice (June 21, 2012), 

https://www.physicianspractice.com/view/biggermedical-practice-always-better. 

44See Bonnie Darves, Demystifying Urban Versus 

Rural Physician Compensation, The New England 

Journal of Medicine Career Center (Mar. 4, 2019), 

https://www.nejmcareercenter.org/article/ 

demystifying-urban-versus-rural-physiciancompensation/. 

45Strengthening Wage Protections for the 

Temporary and Permanent Employment of Certain 

Aliens in the United States, 85 FR 63872. 

the disruptions caused by the rule 

would be profound on these employers, 

as they continue to struggle in 

confronting the ongoing COVID–19 

pandemic. 

A law firm stated that the salary 

market in healthcare is not like the 

salary market in other fields and 

explained that, because so much of 

hospitals’ reimbursement processes are 

governed by Medicare and a tiny 

handful of large insurance companies, it 

would be impossible for U.S. healthcare 

facilities to negotiate reimbursement 

rates in a manner to significantly raise 

salaries. The commenter said that this 

rule is a ‘‘blunt object’’ that would lead 

to additional Silicon Valley, California, 

H–1B visas in place of visas that 

currently help the healthcare of U.S. 

citizens, and rural facilities would suffer 

the brunt of this policy. 

Response: DHS appreciates the 

significant contributions of all 

healthcare professionals, especially 

during the current COVID–19 pandemic, 

but believes that this rule will provide 

benefits to the greater U.S. workforce. 

DHS does not believe that the changes 

in this rule will have a 

disproportionately negative impact on 

small- to mid-sized medical practices as 

compared to larger hospital systems. It 

is not necessarily the case that larger 

hospital systems are more willing or 

able to provide higher salaries to their 

employees.43 DHS also does not believe 

that the changes in this rule will have 

a disproportionately negative impact on 

rural facilities, as it is not necessarily 

the case that rural facilities are 

unwilling or unable to provide 

relatively higher salaries compared to 

facilities in other areas.44 With respect 

to the ability to offer increased wages 

generally, DHS acknowledges that 

employers of healthcare professionals, 

like employers in all industries, must 

consider a variety of factors in 

determining employee salaries. 

However, this rule does not require 

employers to pay a higher wage, and, as 

stated in the NPRM and above, 

employers that might have petitioned 

for a cap-subject H–1B worker to fill 

relatively lower-paid, lower-skilled 

positions may be incentivized to hire 

available and qualified U.S. workers for 

those positions. Also as noted above, 

DHS believes that selecting by wage 

level in such years is more consistent 

with the dominant legislative purpose of 

the H–1B program, which is to help U.S. 

employers fill labor shortages in 

positions requiring highly skilled or 

highly educated workers. 

iv. Employers 

Comments: Multiple commenters said 

the proposal would have the following 

negative impacts on employers without 

providing substantive rationale: Many 

industries and companies benefit from 

entry-level employees who bring energy, 

innovation, and diversity; the proposal 

would reduce the number of H–1B 

workers ‘‘that employers can access’’; 

the rule may incentivize employers to 

favor domestic applicants in the short 

term, but businesses may not be able to 

hire the people best suited for the job in 

the long run; companies would suffer 

because foreign employees will not 

waste their time with companies that 

they do not think will be able to sponsor 

them for a visa; to be competitive in the 

H–1B registration process, companies 

would have to pay double the costs for 

new hires; this rule would be beneficial 

for a few industries and create biases for 

other industries; the rule would 

jeopardize the employers’ ability to 

meet business objectives, develop and 

provide new products to market, and 

stay competitive in a global market; this 

proposal would create ‘‘vicious 

competition cycles’’ among H–1B 

candidates and their employers; and, if 

this proposal were implemented, there 

would be a shortage in the job market 

for junior level employees. 

Response: For the reasons explained 

above, DHS disagrees with the 

assertions that this rule will preclude or 

essentially preclude H–1B status for 

recent graduates and entry-level 

workers. The rule is not intended to, 

and DHS does not expect that it will, 

reduce the number of cap-subject H–1B 

workers. As explained in the NPRM and 

above, DHS believes that the rule will 

maximize H–1B cap allocations so that 

they more likely will go to the best and 

brightest workers, consistent with 

Congressional intent. DHS believes that 

this rule will facilitate the admission of 

higher-skilled workers or those for 

whom employers proffer wages 

commensurate with higher prevailing 

wage levels, which will benefit the 

economy and increase the United States’ 

competitive edge in attracting the best 

and the brightest in the global labor 

market, consistent with the goals of the 

H–1B program. Finally, as stated in the 

NPRM and above, employers that might 

have petitioned for a cap-subject H–1B 

worker to fill relatively lower-paid, 

lower-skilled positions, may be 

incentivized to hire available and 

qualified U.S. workers for those 

positions. 

(a) Impacts on Companies 

Comments: A couple of professional 

associations stated that the proposal 

would have an adverse impact on 

petitioners in terms of employment, 

productivity loss, search and hire costs, 

lost profits resulting from labor 

turnover, and more. One of these 

professional associations added that the 

use of wage data for selection of H–1B 

registrants would unfairly discriminate 

against and burden law-abiding 

employers. The commenter also argued 

that the current H–1B registration has 

been beneficial to employers because it 

has a much earlier indication of the 

lottery’s outcome, and that the proposal 

would ‘‘diminish predictability’’ for 

companies. 

A trade association said the rule 

would place an excessive cost burden 

on petitioners because they would be 

required to offer dramatically increased 

wages to prospective H–1B employees, 

especially in conjunction with the new 

increased wage levels implemented 

through the DOL IFR.45 The commenter 

stated that employers would be ‘‘forced’’ 

to offer prevailing wages above the 95th 

percentile to equal or exceed level IV 

prevailing wages. Another trade 

association argued that the proposal, in 

conjunction with the DOL IFR, may 

result in pay that exceeds that of 

comparable U.S. workers, which may 

result in personnel strains and new 

costs for U.S. companies. Several 

commenters, including a professional 

association, company, and research 

organization, stated that employers 

would be ‘‘forced’’ to either forego 

hiring foreign professionals or hire 

foreign workers at a salary level higher 

than U.S. workers, which would cause 

problems for the employers such as 

internal equity issues. An individual 

commenter stated that the rule would 

create public relations problems for 

companies, arguing that ‘‘forcing’’ 

companies to pay foreign workers more 

than the market currently dictates 

would disenfranchise U.S. workers in 

similar positions. 

Response: DHS disagrees that this rule 

will unfairly discriminate against and 

burden law-abiding employers. While 

petitioners may initially spend more on 

search and hire costs to obtain foreign 

workers who command higher wages or 

have higher skill levels, DHS believes 


tkelley on DSKBCP9HB2PROD with RULES3
1688 Federal Register / Vol. 86, No. 5 / Friday, January 8, 2021 / Rules and Regulations 

46On December 1, 2020, the U.S. District Court 

for the Northern District of California issued an 

order in Chamber of Commerce, et al. v. DHS, et 

al., No. 20-cv-7331, setting aside the DOL IFR, 85 

FR 63872. Similarly, on December 3, 2020, the U.S. 

District Court for the District of New Jersey issued 

a preliminary injunction in ITServe Alliance, Inc., 

et al. v. Scalia, et al., No. 20-cv-14604, applying to 

the plaintiffs in that case. Also on December 3, 

2020, DOL announced that it will no longer 

implement the IFR, consistent with the above 

referenced court orders. 47See 85 FR 69236, 69239. 

these petitioners will see an increase in 

productivity as a result of hiring such 

higher-skilled workers. Regarding the 

benefits of the registration process, this 

rule will continue to use the same 

registration process (with the added 

factor of ranking and selection by wage 

level), which will continue to provide 

predictability for companies in the H– 

1B cap selection process. In fact, this 

rule may increase predictability for 

companies offering relatively higher 

wages in order to increase their chances 

of selection. 

As for the concern about offering 

prevailing wages above the 95th 

percentile, DHS notes that the DOL IFR 

was set aside and no longer is being 

implemented as of the publication of 

this final rule.46 As for the concerns 

about ‘‘internal equity issues’’ or 

‘‘public relations problems’’ caused by 

paying foreign workers more than the 

U.S. workers in similar positions, 

nothing in this rule requires an 

employer to offer an H–1B worker a 

higher wage than a U.S. citizen worker 

for the same position. 

(b) Impacts on Available Workforce 

Comments: Several commenters, 

including a professional association and 

a trade association, argued that the 

proposal would harm the ability of U.S. 

companies to hire aliens for entry-level 

jobs. A company asserted that the 

NPRM would diminish U.S. companies’ 

access to the full range of talent, across 

all career stages, necessary to build a 

complete workforce. An advocacy group 

similarly said that the rule does a 

disservice to companies struggling to fill 

talent gaps across multiple levels of 

employment. An individual commenter 

said the rule would end the H–1B 

program ‘‘for good’’ for many 

professions that are in short supply. An 

individual commenter argued that the 

proposal makes the H–1B process more 

challenging for both small and large 

employers who have relatively small 

numbers of H–1B workers compared to 

the overall workforce, and makes it 

‘‘almost impossible’’ to fill certain 

positions without being able to 

supplement the U.S. workforce. A trade 

association said that the proposal is an 

example of ‘‘government heavyhandedness’’ which presents U.S. 

companies with prospective difficulties 

in meeting workforce needs. 

An anonymous commenter said the 

rule would severely interrupt many U.S. 

companies’ operations, as it would 

disqualify many foreign workers 

fulfilling specialty jobs and make it 

difficult for companies to find 

reasonable substitutes for the labor. The 

commenter stated that DHS’ statement 

that these disadvantages would be offset 

by increased productivity and 

availability of higher wage H–1B 

petitioners is ‘‘optimistic’’ and lacks 

support. 

An individual commenter said their 

company would be impacted because 

entry-level STEM candidates have 

played critical roles throughout the 

organization, and the proposal would 

mean they would be unable to draw 

from the world’s leading talent. In 

addition, some of their H–1B employees 

gain OPT through the company, and it 

would be detrimental to their business 

to be forced to terminate these 

employees after they have received 

training. 

Response: DHS acknowledges that, 

under this final rule, an employer 

offering a level I wage under the regular 

cap, and an employer offering a level I 

or II wage under the advanced degree 

exemption, may have a reduced chance 

of selection than under the current 

random selection process. However, 

DHS believes that selecting based on 

wage level is necessary and consistent 

with the intent of the H–1B statutory 

scheme to utilize the numerical cap in 

a way that incentivizes a U.S. 

employer’s recruitment of beneficiaries 

for positions requiring the highest 

prevailing wage levels or proffering 

wages equaling or exceeding the highest 

prevailing wage levels relative to their 

SOC code and area of intended 

employment, either of which correlate 

with higher skill levels.47 Prospective 

employers who seek to ‘‘draw from the 

world’s leading talent’’ may maximize 

their likelihood of selection by offering 

wages commensurate with such a high 

skill level rather than offering relatively 

low wages. Further, DHS disagrees with 

suggestions that this rule would end the 

H–1B program’s utility for certain 

companies or disqualify many foreign 

workers fulfilling specialty occupation 

jobs. This rule does not affect current 

H–1B employees (unless such workers 

become subject to the H–1B numerical 

allocations in the limited circumstance 

that their cap-exempt employment 

terminates) nor does the rule change the 

eligibility criteria to qualify for an H–1B 

visa. 

(c) Impacts on Specific Types of 

Employers 

Comments: A professional association 

said that the proposal would negatively 

impact the information technology (IT) 

industry, which already is facing a 

scarcity of high-skilled candidates. The 

commenter cited a study, which found 

that there were over 650,000 unfilled 

computer-related jobs posted between 

September and October 2020, which 

often are filled with employees from 

abroad with degrees. The proposed rule 

would limit the ability of IT companies 

to hire foreign workers and would stifle 

U.S. innovation, harm economic growth 

and, therefore, impact job opportunities 

for U.S. workers. An individual 

commenter discussed how the proposed 

rule actually would achieve the 

opposite of its desired outcome, which 

would be increased wages for H–1B 

workers, particularly in the IT sector. 

The commenter explained that 

companies are realizing that employees 

can accomplish their jobs at home 

during the COVID–19 crisis. If this is the 

case, employers could avoid the costs 

associated with foreign worker 

sponsorship and, instead, employ H–1B 

workers at lower wages while they 

remain in their respective countries. A 

research institute explained that the 

proposed rule is targeting the IT 

industry to prevent employers in that 

industry from obtaining H–1B visas or 

making it too expensive for them to 

employ H–1B visa holders. 

An individual argued that a financial 

technology company would be 

negatively impacted, giving the example 

of a Database Administrator position, 

which the commenter said does not 

require a level III or IV prevailing wage, 

but often is difficult to fill with U.S. 

workers. 

A couple of individual commenters, 

an advocacy group, and a professional 

association said that companies need 

workers through the H–1B program 

because there are not enough qualified 

U.S. workers in STEM fields. Another 

individual commenter cited a STEM 

worker shortage, arguing that the United 

States should be ‘‘rolling out the 

welcome mat’’ for high-skilled talent. A 

professional association and an 

individual commenter also addressed 

the claimed current STEM shortage and 

explained how the proposed rule would 

further hurt employers’ ability to hire 

college-educated foreign workers. A 

trade association stated that the 

proposed rule would make the H–1B 

visa program unusable for many 

engineering firms. The association, 


tkelley on DSKBCP9HB2PROD with RULES3
Federal Register / Vol. 86, No. 5 / Friday, January 8, 2021 / Rules and Regulations 1689 

48U.S. Department of Homeland Security, U.S. 

Citizenship and Immigration Services, Office of 

Policy and Strategy, Policy Research Division, H1B 

Petitions for Non Immigrant Worker (I–129) 

Summarized by SOC CODE Occupation by Wage 

Level As of August 28, 2020, Database Queried: 

Aug. 28, 2020, Report Created: Aug. 17, 2020, 

Systems: C3 via SASPME, DOL OFLC Performance 

DATA H1B for 2018, 2019. This data does not 

further break down how many of these petitions 

were for ‘‘Architecture’’ occupations versus 

‘‘Engineering’’ occupations. 

49See Michael R. Strain, The link between wages 

and productivity is strong, American Enterprise 

Institute (AEI) and Institute for the Study of Labor 

(IZA) (Feb. 4, 2019), https://www.aei.org/researchproducts/report/the-link-between-wages-andproductivity-is-strong/. 

50See INA section 214(g)(5), 8 U.S.C. 1184(g)(5); 

8 CFR 214.2(h)(8)(iii)(F). 

citing data from the National Science 

Foundation, asserted that the 

engineering workforce is growing slower 

than the demand for engineers, and is 

growing older. Therefore, the 

engineering industry needs to be able to 

access labor from around the world to 

fill key positions. A company and a 

professional association said that U.S. 

graduates with advanced degrees in 

STEM, such as computer science, IT, or 

industrial engineering, are 

predominately foreign students and that 

the NPRM would negatively harm 

companies seeking these employees. A 

medical device company that employs 

research and development (R&D) 

engineers stated that the rule would 

result in poorer talent to develop 

medical technologies or higher wages to 

international talent, which would 

reduce overall R&D resources and 

impact their ability to deliver the best 

healthcare technologies. 

A trade association said that 

restricting H–1B visas to senior 

professionals with higher wages would 

negatively impact manufacturers and 

their ability to hire aliens with STEM 

education and training to fill roles as 

researchers, scientists, engineers, and 

technicians. The commenter explained 

that the NPRM may deter aliens from 

attending college in the United States 

and restrict the talent pipeline. Further, 

the commenter stated that 

manufacturers rely on a skilled and 

innovative workforce that allows them 

to remain competitive, and that this 

NPRM will provide other countries a 

competitive advantage. This is coupled 

with the claim that the workforce 

challenge is expected to get worse in the 

future, with studies showing that nearly 

half of the 4.6 million manufacturing 

jobs could go unfilled, according to the 

commenter. 

A university and an individual stated 

that the proposed system would 

encourage employers to artificially 

inflate their job requirements to increase 

the chance of acceptance through the 

lottery, creating an unfair advantage for 

larger employers. An individual 

commenter similarly said the rule 

disproportionately favors companies 

willing to pay the most money to foreign 

workers. An individual commenter said 

the rule would pit companies against 

each other to provide the highest salary, 

which would give larger tech companies 

control over the H–1B selection lottery. 

A law firm stated that start-up 

companies would be negatively 

impacted because they do not have the 

capital to be able to offer ‘‘obscenely 

high salaries’’ to be competitive in this 

process. 

A few commenters noted that the 

increased difficulty in obtaining H–1B 

workers could have a negative effect on 

R&D or innovation at their companies. 

For example, a professional association 

said that companies in the automotive 

sector that have committed hundreds of 

millions of dollars to developing fuelefficient engines no longer would be 

able to hire and retain recent graduates 

who have the academic background 

necessary to drive innovation through 

the H–1B program. Another professional 

association wrote that the proposed rule 

would negatively impact companies 

developing products that strengthen 

national security, as it would diminish 

the ability of U.S. employers to hire 

workers for the development of 

technology including artificial 

intelligence, quantum information 

science, robotics, and fifth-generation 

communications technology. 

Response: DHS does not believe this 

rule will have a disparate negative 

impact on IT companies, financial 

technology companies, engineering 

firms, manufacturers, or companies in 

any particular industry. Additionally, 

DHS does not believe this rule will 

disadvantage companies developing 

products that strengthen national 

security or companies driving 

innovation in the automotive sector. 

Instead, DHS believes this rule will 

incentivize employers to proffer higher 

wages, or to petition for positions 

requiring higher skills and higherskilled aliens that are commensurate 

with higher wage levels, thereby 

attracting the best and the brightest 

employees and promoting innovation 

across all industries. 

Moreover, DHS disagrees with the 

assertion that this rule will make the H– 

1B visa program ‘‘unusable’’ for 

engineering firms. While DHS 

acknowledges that some data may show 

that the engineering workforce is 

growing slower than the demand for 

engineers, DHS disagrees with the 

commenter that this means engineering 

firms must hire entry-level foreign 

workers to fill this gap. In fact, DHS data 

shows that, for ‘‘Architecture and 

Engineering Occupations,’’ there has 

been a significant number of petitions 

filed for level III and IV positions. 

Specifically, for FYs 2018 and 2019, 

employers filed 11,519 and 7,045 

petitions (total of 18,564) for level III 

and IV positions, respectively, 

compared to 15,625 and 25,147 

petitions (total of 40,772) for level I and 

II positions, respectively.48 While 

registrations ranked according to 

prevailing wage level I and below likely 

will face reduced chances of selection, 

those ranked according to level II and 

greater stand increased chances of 

selection, as discussed in the NPRM. 

DHS also disagrees that the rule will 

disadvantage the IT industry or stifle 

innovation. Conversely, DHS believes 

this rule may increase innovation and 

productivity.49 Notably, other 

commenters claimed that this rule 

would favor the IT industry (which DHS 

disputes as well). Again, and as made 

apparent through these conflicting 

comments, DHS does not believe this 

rule will have a disparate negative or 

positive impact on the IT industry or 

companies in any particular industry. 

Comment: An individual commenter 

stated that the rule would negatively 

impact non-profit organizations and 

public schools because they would need 

to compete with and pay the prevailing 

wages offered by for-profit businesses. 

Another individual commenter said that 

non-profits do not operate to maximize 

profit, and that their budgets cannot 

accommodate level III or IV prevailing 

wages. The commenter also argued that 

there is a large need for immigrant 

social workers who are able to better 

connect with and relate to the large 

population of noncitizens in the United 

States. Another commenter claimed 

that, if the H–1B proposed changes go 

into effect, many school districts 

throughout the United States would 

have a difficult time finding teachers. 

Response: DHS does not believe that 

this rule will have a significant negative 

impact on non-profit organizations or 

public schools. Congress already 

exempted from the H–1B cap any alien 

who is employed or has received an 

offer of employment at an institution of 

higher education, a related or affiliated 

non-profit entity, or a non-profit 

research organization or a governmental 

research organization.50 Thus, many 

petitions for non-profits will not be 

affected by this rule. Some public 

schools also are exempt from the H–1B 

cap based on their affiliation with 


tkelley on DSKBCP9HB2PROD with RULES3
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51See Burr Forman McNair et al., School Districts 

Taking Advantage of New H–1B Cap Exempt 

Regulations, JDSUPRA (June 1, 2017), https://

www.jdsupra.com/legalnews/school-districtstaking-advantage-of-64663/. 52 Data shows that roughly 53 percent of recent 

college graduates in the United States are currently 

unemployed or underemployed. See Darko 

Jacimovic, College Graduates Unemployment Rate 

in the US, What to Become (Nov. 25, 2020), https:// 

whattobecome.com/blog/college-graduatesunemployment-rate/#:∼:text=The%20

median%20pay%20for%20

those,in%20the%20US%20is%202.1%25 (citing 

University of Washington data). 53See 20 CFR 655.731(c)(2). 

institutions of higher education.51 For 

those non-profit entities or public 

school districts that are not cap-exempt 

and are unable to proffer wages that 

equal or exceed prevailing wage levels 

with greater chances of selection, they 

may be able to find available and 

qualified workers outside of the H–1B 

program.52

(d) Other Comments on Impacts on 

Employers 

Comments: Multiple commenters 

argued that the rule likely would result 

in a significant and sudden downturn in 

immigration casework, and would cause 

immigration law firms to scale back 

operations and lay off staff, at a time 

when the U.S. economy already is in a 

precarious position and unemployment 

is high. 

Response: DHS disagrees with these 

commenters as this rule is not intended 

or expected to result in fewer H–1B 

workers in the United States, and will 

not affect existing H–1B workers, unless 

such workers become subject to the 

numerical allocations, and therefore 

should not reduce workload for 

immigration law firms overall. 

Employers with existing H–1B 

employees, who are not affected by this 

rule, may still need immigration law 

firm services. In addition, while some 

employers may opt not to participate in 

the H–1B program as a source for 

potential new employees and may not 

require immigration law firm services 

for those potential new employees as a 

result, given the high demand for H–1B 

visas, other employers may have the 

opportunity to begin participating in the 

program or to increase their existing 

participation in the program and may 

require increased services of 

immigration firms and attorneys. 

Therefore, DHS does not anticipate that 

this rule will have a negative overall 

impact on law firms and attorneys. 

Comments: Multiple commenters 

reasoned that, with a focus on base 

wages, the proposed rule may result in 

employers abandoning the use of 

variable compensation, such as bonuses, 

profit-sharing payments, stock, and 

other incentives tied to performance. A 

commenter argued that variable pay can 

benefit a company by focusing 

organizations, business units, and 

individuals on specific goals and 

objectives. Alternatively, employers 

offering such compensation packages 

may be disadvantaged relative to others 

offering solely wage-based 

compensation. 

Response: DHS recognizes that 

companies may offer various forms of 

benefits and benefits provided as 

compensation for services, such as cash 

bonuses, stock options, paid insurance, 

retirement and savings plans, and profitsharing plans. While cash bonuses may, 

in limited circumstances, be counted 

towards the annual salary,53 other forms 

of benefits such as stock options, profit 

sharing plans, and flexible work 

schedules may not be readily 

quantifiable or guaranteed, which 

means that they cannot reliably be 

calculated into proffered wages. Further, 

as one commenter pointed out, if a 

beneficiary is highly valued, that 

beneficiary may be able to discuss with 

their employer changes to their 

compensation structure that could result 

in a more easily quantifiable proffered 

wage. 

v. Economy 

Comments: Multiple commenters said 

the proposal would have the following 

negative impacts on the economy 

without providing substantive rationale: 

The rule would hurt the overall 

economy; the American public would 

assume the increased cost of labor 

through hidden corporate taxes or 

increased costs of services; this would 

affect U.S. economic development 

because many young people will be 

blocked by this new rule; this proposal 

would increase economic and cultural 

divisions that already exist because it 

would eliminate all ‘‘interactive 

possibilities from social and cultural 

disciplines’’; the proposed rule would 

harm the U.S. economy because the 

United States needs international 

students to bring funds to the country to 

study and live; international students 

educated at U.S. colleges have better 

acculturation to U.S. society, which is 

very important for long-term growth of 

the economy. 

An individual commenter stated that 

the proposal would ‘‘gut the system’’ 

and lead to further economic decline. 

Other commenters argued that this rule 

would hurt the economy during a global 

pandemic when the economy is 

suffering. An individual commenter 

said that, to rebound from the pandemic 

and meet the challenges that face the 

United States, the country must expand 

opportunities for skilled workers, 

particularly in the STEM and health 

professions. A few individual 

commenters asserted, without evidence, 

that the proposal is based on the ‘‘false 

premise’’ that individuals who earn 

more contribute more to the economy, 

and that the rule promotes falsities 

about the workers who strengthen the 

U.S. economy. A few individual 

commenters stated that the proposal 

provides no evidence that higher wages 

correspond with labor needs of 

employers or provide a greater 

economic benefit. 

Response: DHS does not agree that 

this rule will harm the U.S. economy or 

economic development, increase costs 

for the American public, or increase 

cultural or economic divisions. Instead, 

DHS believes that this rule will facilitate 

the admission of higher-skilled workers, 

which will benefit the economy and 

increase the United States’ competitive 

edge in attracting the best and the 

brightest in the global labor market, 

consistent with the goals of the H–1B 

program. It may also benefit U.S. 

workers, as employers that might have 

petitioned for cap-subject H–1B workers 

to fill relatively lower-paid, lowerskilled positions, may be incentivized to 

hire available and qualified U.S. 

workers for those positions. 

Comments: A university said that 

foreign graduates do not take jobs from 

U.S. citizens, but, rather, they create 

new jobs and contribute ‘‘billions’’ to 

the economy. An individual commenter 

argued that attracting the best and 

brightest from around the world for 

education and employment helps to 

drive innovation and benefits the U.S. 

economy and nation as a whole, but the 

proposed rule would not lead to that 

outcome. An individual cited numerous 

studies in arguing that the current 

framework, in contrast to a proposed 

‘‘best and brightest’’ prioritization, 

generates more economic benefits of the 

type intended by Congress. Several 

other commenters argued that the rule 

would cause professionals to seek 

careers elsewhere. A law firm stated that 

the rule could halt innovation in the 

United States, as studies have shown a 

positive correlation between foreign 

students and innovation. 

An advocacy group said that the rule 

would risk preventing highly skilled 

professionals from bringing their talents 

to the United States, despite their 

education and skill, which likely would 

result in the United States missing out 

on the contributions of needed talent 

across multiple industries. A trade 

association stated that ‘‘each facet’’ of 

the U.S. workforce is enabled by an 


tkelley on DSKBCP9HB2PROD with RULES3
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54See Drew Calvert, Companies Want to Hire the 

Best Employees. Can Changes to the H–1B Visa 

Program Help?, KelloggInsight (Feb. 6, 2017), 

https://insight.kellogg.northwestern.edu/article/ 

how-to-revamp-the-visa-program-for-highly-skilledworkers (further noting ‘‘[u]nder the current system, 

U.S. companies are often discouraged from even 

attempting to hire a foreign worker, despite how 

uniquely qualified he or she might be’’). 

55See Muzaffar Chrishti and Stephen Yale-Loehr, 

The Immigration Act of 1990: Unfinished Business 

a Quarter-Century Later, Migration Policy Institute 

(July 2016), https://www.migrationpolicy.org/sites/ 

default/files/publications/1990-Act_2016_

FINAL.pdf (‘‘Sponsors of [the Immigration Act of 

1990 which created the H–1B program as it exists 

today] believed that facilitating the admission of 

higher-skilled immigrants would benefit the 

economy and increase the United States’ 

competitive edge in attracting the ‘best and the 

brightest’ in the global labor market.’’). 

56See Britta Glennon, How Do Restrictions on 

High-Skilled Immigration Affect Offshoring? 

Evidence from the H–1B Program, National Bureau 

of Economic Research (July 2020), https://

www.nber.org/papers/w27538; Michelle Marks, 

Skilled, foreign workers are giving up on their 

American dreams—and turning to Canada, 

Business Insider (Mar. 31, 2019), https://

www.businessinsider.com/h-1b-visa-rejects-movingto-canada-2019-3. Notably, the latter article focuses 

on how the current random lottery process 

disincentivizes prospective high-skilled 

beneficiaries seeking H–1B visas in the United 

States and incentivizes them to seek visas in 

countries with more merit-based selection 

processes. 

immigration system that allows access 

to foreign talent to allow employers to 

remain competitive, and argued that 

highly-skilled foreign executives and 

managers help run key aspects of U.S. 

companies that create thousands of jobs 

for domestic workers. The commenter 

said that it is this ‘‘synergy’’ between 

aliens and U.S. residents that underpins 

the United States’ ‘‘vibrant’’ economy. 

An attorney argued that the United 

States would lose the benefits that come 

with younger, recently educated 

professionals whose value already has 

been assessed against the ease of 

employing U.S. applicants. An advocacy 

group said that the U.S. population is 

aging, and the country needs 

immigrants to help the economy grow. 

In addition, the commenter said that, for 

the United States’ innovation future, the 

country needs international students. 

An individual commenter stated that 

favoring aliens far into their careers over 

young professionals is ‘‘perverse’’ 

because they may have only a decade of 

their careers left, which is not in the 

country’s best interest. Another 

commenter said that this proposal could 

result in future H–1B participants who 

are older, not necessarily high-skilled, 

and have no exposure to American 

culture. The commenter said 

international students and the H–1B 

program are key drivers of job growth 

and economic dynamism, and altering 

the H–1B program to exclude recent 

graduates may stymie these positive 

effects. 

Response: DHS appreciates the 

economic contributions that highly 

skilled aliens make to the United States. 

Rather than reducing such contributions 

or halting innovation, DHS believes that 

this rule will incentivize employers to 

attract and recruit highly-skilled aliens, 

as opposed to the current random 

selection process that ‘‘favors 

companies hiring workers with 

interchangeable skills en masse over 

those with a pressing need to hire 

specific foreign experts,’’ 54 and, thus, 

will benefit the economy overall.55 The 

rule is not intended to, and DHS does 

not expect that it will, reduce the 

number of H–1B workers. DHS also 

notes that this rule does not preclude 

recent graduates from obtaining H–1B 

status or employers from directly 

sponsoring a recent foreign graduate for 

an employment-based immigrant visa. 

Although this rule will reduce the 

chance of selection for those at lower 

wage levels in years of excess demand, 

DHS believes that selecting by wage 

level in such years is more consistent 

with the dominant legislative purpose of 

the H–1B program, which is to help U.S. 

employers fill labor shortages in 

positions requiring highly skilled or 

highly educated workers. Furthermore, 

DHS disagrees with the commenter that 

selecting higher paid and/or more 

highly skilled workers necessarily 

means that employers will be selecting 

those with less time left in their careers 

and thus those who will not be in the 

country’s best interest. In addition, DHS 

does not believe that the time spent in 

the workforce determines the degree of 

contribution to the economy or the 

country. As explained in the NPRM and 

above, DHS believes that the rule will 

maximize H–1B cap allocations so that 

they more likely would go to the best 

and brightest workers. 

Comments: Several commenters said 

that the proposal could have the 

unintended consequence of ‘‘forcing’’ 

entire businesses offshore. A 

professional association said that the 

proposal would result in more 

companies outsourcing jobs abroad and 

would discourage innovation. An 

individual commenter said that each job 

that is off-shored will take with it 

multiple other U.S. positions because 

the United States will lose the economic 

contributions of foreign workers, such 

as rented apartments, home mortgages, 

cares, groceries, and more. Another 

commenter said that this rule would 

make it more expensive for companies 

to hire in U.S. locations, and they 

eventually would move entire sections 

of their operation overseas or outsource 

labor, hurting U.S. workers in the long 

run. 

Response: DHS disagrees with the 

commenters who state that this rule will 

cause employers to move operations to 

other countries. These commenters cited 

research 56 suggesting that restricting H– 

1B immigration is likely to cause 

multinational firms to offshore their 

highly skilled labor as the basis for 

concerns about this rule. However, DHS 

disagrees that this rule restricts H–1B 

immigration. Again, this rule does not 

affect the statutorily mandated annual 

H–1B cap, nor does it affect substantive 

eligibility requirements for an H–1B 

visa. While DHS acknowledges this rule 

may impose costs to individual 

employers, neither the comments nor 

sources cited address the countervailing 

impact on those level III and IV 

employers impacted or benefited by this 

rule. DHS believes that this rule, 

instead, will facilitate the admission of 

higher-skilled workers, which will 

benefit the economy and increase the 

United States’ competitive edge in 

attracting the best and the brightest in 

the global labor market, consistent with 

the goals of the H–1B program. 

Comments: A couple of commenters, 

including a trade association, said that, 

in many cases, the proposed rule would 

require employers to pay their H–1Bs 

more than the actual market wages for 

U.S. citizens holding comparable 

positions. An individual commenter 

argued that prioritizing wages conflicts 

with the current DOL Prevailing Wage 

system, which ensures that H–1B 

holders do not depress the wages of U.S. 

workers. A company said that 

artificially raising the amount of money 

an employer must devote to paying H– 

1B workers would result in the 

company employing fewer workers 

overall, including U.S. workers. The 

commenter’s reasoning was that, as a 

salary-focused ‘‘arms race’’ begins, 

employers would rely less and less on 

labor and more on technology and other 

means to avoid the unsustainable wage 

levels. Another commenter said the 

proposal would create the issue of wage 

discrimination against U.S. employees 

because an employer would have to 

offer a higher level of pay to H–1B 

applicants than to citizens for the same 

position. 

Response: To the extent that these 

comments refer to wages required as a 

result of the DOL IFR, DHS notes that, 

on December 1, 2020, the U.S. District 

Court for the Northern District of 

California issued an order in Chamber 

of Commerce, et al. v. DHS, et al., No. 

20–cv–7331, setting aside the Interim 


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57U.S. Department of Labor, Employment and 

Training Administration, Foreign Labor 

Certification, Announcements, https://

www.dol.gov/agencies/eta/foreign-labor (last visited 

Dec. 21, 2020). 

Final Rule Strengthening Wage 

Protections for the Temporary and 

Permanent Employment of Certain 

Aliens in the United States, 85 FR 63872 

(Oct. 8, 2020), which took effect on 

October 8, 2020, and implemented 

reforms to the prevailing wage 

methodology for the Permanent 

Employment Certification, H–1B, H– 

1B1, and E–3 visa programs. Similarly, 

on December 3, 2020, the U.S. District 

Court for the District of New Jersey 

issued a preliminary injunction in 

ITServe Alliance, Inc., et al. v. Scalia, et 

al., No. 20–cv–14604, applying to the 

plaintiffs in that case. On December 3, 

2020, DOL announced that it is taking 

necessary steps to comply with the 

courts’ orders and is no longer 

implementing the IFR.57

As explained in the NPRM, the 

ranking process established by this rule 

does not alter the prevailing wage level 

associated with a given position for DOL 

purposes, which is informed by a 

comparison of the requirements for the 

proffered position to the normal 

requirements for the occupational 

classification. While DHS acknowledges 

that this final rule will result in more 

registrations (or petitions, as applicable) 

being selected for relatively higher paid, 

higher-skilled beneficiaries, the rule 

does not change, and does not conflict 

with, prevailing wage requirements. 

This final rule merely fills in a statutory 

gap regarding how to administer the H– 

1B numerical allocations in years of 

excess demand. 

DHS disagrees with the contentions 

that, by raising salaries for H–1B 

workers, this rule will cause employers 

to reduce their overall workforce 

including U.S. workers, rely less on 

labor, or pay their H–1B workers more 

than their U.S. workers holding 

comparable positions. First, by 

incentivizing employers to use the H–1B 

program to fill positions requiring 

higher prevailing wage levels, or 

proffering wages commensurate with 

higher prevailing wage levels, 

employers may see a possible increase 

in productivity, as explained in the 

NPRM. Because of the possible increase 

in productivity, it is not necessarily the 

case that employers would employ 

fewer workers overall or rely less on 

labor. DHS believes that this rule will 

facilitate the admission of higher-skilled 

workers, which will benefit the 

economy and increase the United States’ 

competitive edge in attracting the best 

and the brightest in the global labor 

market, consistent with the goals of the 

H–1B program. 

Second, concerning the contentions 

that this rule would force employers to 

pay their H–1B workers more than their 

U.S. workers or otherwise harm U.S. 

workers, this final rule does not 

mandate employers to pay more for 

their H–1B workers; again, this rule 

merely fills in a statutory gap regarding 

how to administer the H–1B numerical 

allocations in years of excess demand. 

And as stated in the NPRM, this rule 

may provide increased opportunities for 

lower-skilled U.S. workers in the labor 

market to compete for work as there 

would be fewer H–1B workers paid at 

the lower wage levels to compete with 

U.S. workers, and may incentivize 

employers to recruit available and 

qualified U.S. workers. 

c. General Wage-Based Selection 

Concerns 

Comments: Many commenters, mostly 

individual commenters, generally 

disagreed with the proposed rule and 

expressed wage-based selection 

concerns without providing substantive 

rationale, stating that: Wage is not the 

only factor to judge the value of a 

worker, and the rule erroneously 

assumes that salary is the best indicator 

of a worker’s value to society; H–1B 

wages are commensurate with 

experience and should not be used to 

establish eligibility; basing selection on 

wage levels violates U.S. values, such as 

fairness and justice; every position has 

‘‘many wages,’’ so it is better to 

distinguish people within a position 

rather than based on wages; certain 

locations in the United States, such as 

rural areas, have lower wages compared 

to large cities with higher wage levels; 

the proposed rule would hamper 

regional development for rural areas 

because employers in these 

communities would not be able to pay 

the high wages to hire H–1B workers; 

whether an individual can get an H–1B 

visa depends on how important their 

work is to the country and does not 

depend on how much they can earn; the 

rule will damage U.S. talent capital 

investments because ‘‘current price does 

not equal to final quality’’; ranking by 

wage is not an accurate reflection of 

one’s skill level because it could simply 

be based on age or years of experience; 

there are lower-paying jobs which still 

need to be filled by H–1B visa workers; 

basing selection on salary is unfair 

because the salary starting point and 

growth speed are different for different 

industries; the proposed rule does not 

address abuse in the H–1B program, 

such as staffing companies filing 

multiple petitions for each person and 

full-time workers filing as part-time so 

that their salary on file is doubled; this 

proposal artificially could increase 

wages, and wages should be determined 

by supply and demand instead; and, in 

some industries or locations, the 

beneficiaries’ base salaries are similar 

enough to fall into one or two 

categories, which would make them 

likely to be the same as a random lottery 

under DOL’s new prevailing wage level 

calculations. 

Response: DHS believes that an 

employer who offers a higher wage than 

required by the prevailing wage level 

does so because that higher wage is a 

clear reflection of the beneficiary’s value 

to the employer, which reflects the 

unique qualities the beneficiary 

possesses. Thus, DHS believes this rule 

will benefit the best and brightest 

workers in all professions. DHS does not 

agree that this rule will favor certain 

high-paying professions or companies, 

as the rule takes into account the wage 

level relative to the SOC code—as 

opposed to salary alone—when ranking 

registrations. Regarding the concern for 

depressed areas, the rule equalizes 

geographic differences in salary 

amounts by taking into account the area 

of intended employment when ranking 

registrations. Particularly, as stated in 

the final rule, USCIS will select H–1B 

registrations based on the highest OES 

prevailing wage level that the proffered 

wage equals or exceeds for the relevant 

SOC code and area(s) of intended 

employment. In ranking according to 

the wage level, the final rule makes it so 

that registrations for the same wage 

level will be ranked the same regardless 

of whether their proffered wages are 

different owing to their areas of 

intended employment. 

Regarding the concerns about fairness, 

DHS believes that this rule is fair to U.S. 

workers, H–1B workers, and petitioners. 

Conversely, the current random 

selection process is not fair to U.S. 

workers whose wages may be adversely 

affected by an influx of relatively lowerpaid H–1B workers, or to U.S. 

employers who have sought to petition 

for foreign workers at higher OES 

prevailing wage levels and are not 

selected. 

3. Other General Feedback 

Comment: An immigration 

practitioner in Guam noted that many 

H–1B visas are awarded to engineers 

coming to perform projects for the 

military realignment in Guam, and that 

this rule poses a threat to those projects’ 

timely completions. 

Response: DHS disagrees with this 

commenter. H–1B workers in Guam (or 

the Commonwealth of the Northern 


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58See 48 U.S.C. 1806(b)(A). 

59 DHS, Orders of Succession and Delegations of 

Authorities for Named Positions, Delegation No. 

00106, Revision No. 08.5 (Apr. 10, 2019). 

60 DHS, Orders of Succession and Delegations of 

Authorities for Named Positions, Delegation No. 

00106, Revision No. 08.6 (Nov. 8, 2019). 

61Compare 6 U.S.C. 113(a)(1)(A) (crossreferencing the FVRA without the 

‘‘notwithstanding’’ caveat), with id. 113(g)(1)–(2) 

(noting the FVRA provisions and specifying, in 

contrast, that section 113(g) provides for acting 

secretary service ‘‘notwithstanding’’ those 

provisions); see also 5 U.S.C. 3345(b)(1)(B) 

(restricting acting officer service under section 

3345(a), in particular, by an official whose 

nomination has been submitted to the Senate for 

permanent service in that position). 62 5 U.S.C. 3346(a)(2). 

Mariana Islands (CNMI)) are exempt 

from the statutory numerical limitation 

for H–1B classification until December 

31, 2029.58 As this final rule simply 

modifies the registration requirement 

applicable to cap-subject H–1B 

petitions, it will not affect cap-exempt 

H–1B petitions for engineers or other H– 

1B workers coming to work in Guam (or 

the CNMI). 

B. Basis for Rule 

1. DHS Statutory/Legal Authority 

Comments: A few individuals 

supported the rule, saying that the 

changes to H–1B selection are consistent 

with Congressional intent and statutory 

language. Another commenter argued 

that the INA’s silence is an ‘‘invitation’’ 

for USCIS to establish criteria to 

prioritize petitions. Likewise, a research 

organization commented that the 

statutory language is ambiguous and 

USCIS’ proposal would reasonably 

address the ambiguity. 

Response: DHS agrees with these 

comments that the rule is consistent 

with Congressional intent and statutory 

language; the statute is silent as to how 

USCIS must select H–1B petitions, or 

registrations, to be filed toward the 

numerical allocations in years of excess 

demand; the term ‘‘filed’’ as used in INA 

section 214(g)(3), 8 U.S.C. 1184(g)(3), is 

ambiguous; and these changes are 

reasonable and within DHS’ general 

authority. DHS, therefore, is relying on 

its general statutory authority to 

implement these regulations to design a 

selection system that prioritizes 

selection generally based on the highest 

prevailing wage level that a proffered 

wage equals or exceeds. See INA section 

103(a), 214(a) and (c)(1), 8 U.S.C. 

1103(a), 1184(a) and (c)(1). 

Comment: A business association 

generally argued that Acting Secretary 

Chad Wolf’s tenure is in violation of the 

Homeland Security Act and the Federal 

Vacancies Reform Act (FVRA). 

Similarly, a professional association 

commented that Acting Secretary Wolf’s 

tenure also violates Executive Order 

(E.O.) 13753, which established a DHS 

order of succession. The commenter 

added a citation to a U.S. Government 

Accountability Office (GAO) report 

concluding that Acting Secretary Wolf’s 

appointment violated the order of 

succession. The commenter also 

provided citations to court decisions 

overturning DHS rulemakings based on 

Acting Secretary Wolf’s authority. 

Finally, the commenter argued that 

DHS’s attempted corrections of issues 

concerning Acting Secretary Wolf’s 

tenure are insufficient to cure rules 

promulgated under his authority. 

Response: DHS disagrees with the 

commenters that Acting Secretary 

Wolf’s tenure is in violation of the HSA 

and the FVRA; Secretary Wolf is validly 

acting as Secretary of Homeland 

Security. On April 9, 2019, thenSecretary Nielsen, who was Senateconfirmed, used the authority provided 

by 6 U.S.C. 113(g)(2) to establish the 

order of succession for the Secretary of 

Homeland Security.59 This change to 

the order of succession applied to any 

vacancy. This exercise of the authority 

to establish an order of succession for 

DHS pursuant to 6 U.S.C. 113(g)(2) 

superseded the FVRA and the order of 

succession found in Executive Order 

13753, 81 FR 90667 (Dec. 9, 2016). As 

a result of this change, and pursuant to 

6 U.S.C. 113(g)(2), Kevin K. McAleenan, 

who was Senate-confirmed as the 

Commissioner of U.S. Customs and 

Border Protection, was the next 

successor and served as Acting 

Secretary without time limitation. 

Acting Secretary McAleenan 

subsequently amended the Secretary’s 

order of succession pursuant to 6 U.S.C. 

113(g)(2), placing the Under Secretary 

for Strategy, Policy, and Plans position 

third in the order of succession, below 

the positions of the Deputy Secretary 

and Under Secretary for Management.60

Because the Deputy Secretary and 

Under Secretary for Management 

positions were vacant when Mr. 

McAleenan resigned, Mr. Wolf, as the 

Senate-confirmed Under Secretary for 

Strategy, Policy, and Plans, was the next 

successor and began serving as the 

Acting Secretary. 

Further, because he has been serving 

as the Acting Secretary pursuant to an 

order of succession established under 6 

U.S.C. 113(g)(2), the FVRA’s prohibition 

on a nominee’s acting service while his 

or her nomination is pending does not 

apply, and Mr. Wolf remains the Acting 

Secretary notwithstanding President 

Trump’s September 10, 2020, 

transmission to the Senate of Mr. Wolf’s 

nomination to serve as DHS Secretary.61

That said, there have been recent 

challenges to whether Mr. Wolf’s service 

is invalid, resting on the erroneous 

contention that the orders of succession 

issued by former Secretary Nielsen and 

former Acting Secretary McAleenan 

were invalid. The Department believes 

those challenges are not based on an 

accurate view of the law. But even if 

those contentions are legally correct— 

meaning that neither former Secretary 

Nielsen nor former Acting Secretary 

McAleenan issued a valid order of 

succession—under 6 U.S.C. 113(g)(2)— 

then the FVRA would have applied, and 

Executive Order 13753 would have 

governed the order of succession for the 

Secretary of Homeland Security from 

the date of former Secretary Nielsen’s 

resignation. 

The FVRA provides an alternative 

basis for an official to exercise the 

functions and duties of the Secretary 

temporarily in an acting capacity. In 

that alternate scenario, under the 

authority of the FVRA, Mr. Wolf would 

have been ineligible to serve as the 

Acting Secretary of DHS after his 

nomination was submitted to the 

Senate, 5 U.S.C. 3345(b)(1)(B), and Peter 

Gaynor, the Administrator of the 

Federal Emergency Management Agency 

(FEMA), would have—by operation of 

Executive Order 13753—become eligible 

to exercise the functions and duties of 

the Secretary temporarily in an acting 

capacity. This is because Executive 

Order 13753 pre-established the 

President’s succession order for DHS 

when the FVRA applies. Mr. Gaynor 

would have been the most senior official 

eligible to exercise the functions and 

duties of the Secretary under that 

succession order, and thus would have 

become the official eligible to act as 

Secretary once Mr. Wolf’s nomination 

was submitted to the Senate.62 Then, in 

this alternate scenario in which, as 

assumed above, there was no valid 

succession order under 6 U.S.C. 

113(g)(2), the submission of Mr. Wolf’s 

nomination to the Senate would have 

restarted the FVRA’s time limits. 5 

U.S.C. 3346(a)(2). 

Out of an abundance of caution, and 

to minimize any disruption to DHS and 

to the Administration’s goal of 

maintaining homeland security, on 

November 14, 2020, with Mr. Wolf’s 

nomination still pending in the Senate, 

Mr. Gaynor exercised the authority of 

Acting Secretary that he would have 

had (in the absence of any governing 

succession order under 6 U.S.C. 

113(g)(2)) to designate a new order of 

succession under 6 U.S.C. 113(g)(2) (the 


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63Mr. Gaynor signed an order that established an 

identical order of succession on September 10, 

2020, the day Mr. Wolf’s nomination was 

submitted, but it appears he signed that order before 

the nomination was received by the Senate. To 

resolve any concern that his September 10 order 

was ineffective, Mr. Gaynor signed a new order on 

November 14, 2020. Prior to Mr. Gaynor’s new 

order, the U.S. District Court for the District of New 

York issued an opinion concluding that Mr. Gaynor 

did not have authority to act as Secretary, relying 

in part on the fact that DHS did not notify Congress 

of Administrator Gaynor’s service, as required 

under 5 U.S.C. 3349(a). Batalla Vidal v. Wolf, No. 

16CV4756NGGVMS, 2020 WL 6695076, at *9 

(E.D.N.Y. Nov. 14, 2020). The Departments disagree 

that the FVRA’s notice requirement affects the 

validity of an acting officer’s service; nowhere does 

section 3349 indicate that agency reporting 

obligations are tied to an acting officer’s ability to 

serve. 

64On October 9, 2020, the U.S. District Court for 

the District of Columbia issued an opinion 

indicating that it is likely that section 113(g)(2) 

orders can be issued by only Senate-confirmed 

secretaries of DHS and, thus, that Mr. Gaynor likely 

had no authority to issue a section 113(g)(2) 

succession order. Nw. Immigrant Rights Project v. 

United States Citizenship & Immigration Servs., 

No. CV 19–3283 (RDM), 2020 WL 5995206, at *24 

(D.D.C. Oct. 8, 2020). This decision is incorrect 

because the authority in section 113(g)(2) allows 

‘‘the Secretary’’ to designate an order of succession, 

6 U.S.C. 113(g)(2), and an ‘‘acting officer is vested 

with the same authority that could be exercised by 

the officer for whom he acts.’’ In re Grand Jury 

Investigation, 916 F.3d 1047, 1055 (D.C. Cir. 2019). 

The Acting Secretary of DHS is accordingly 

empowered to exercise the authority of ‘‘the 

Secretary’’ of DHS to ‘‘designate [an] order of 

succession.’’ 6 U.S.C. 113(g)(2). In addition, this is 

the only district court opinion to have reached such 

a conclusion about the authority of the Acting 

Secretary, and the Departments are contesting that 

determination. 

65See INA 103, 8 U.S.C. 1103, and 6 U.S.C. 

113(g)(2). 

66See 6 U.S.C. 113(f). 

67See 85 FR 69236, 69242. 

68See INA section 214(c)(1), 8 U.S.C. 1184(c)(1). 

See also Walker Macy, 243 F.Supp.3d at 1176 

(‘‘Congress left to the discretion of USCIS how to 

handle simultaneous submissions, [and 

accordingly], USCIS has discretion to decide how 

best to order those petitions.’’). 

69See 243 F.Supp.3d at 1175. 

‘‘Gaynor Order’’).63 In particular, Mr. 

Gaynor issued an order of succession 

with the same ordering of positions 

listed in former Acting Secretary 

McAleenan’s November 2019 order. The 

Gaynor Order thus placed the Under 

Secretary for Strategy, Policy, and Plans 

above the FEMA Administrator in the 

order of succession. Once the Gaynor 

Order was executed, it superseded any 

authority Mr. Gaynor may have had 

under the FVRA and confirmed Mr. 

Wolf’s authority to continue to serve as 

the Acting Secretary. Hence, regardless 

of whether Mr. Wolf already possessed 

authority pursuant to the November 8, 

2019, order of succession effectuated by 

former Acting Secretary McAleenan (as 

the Departments have previously 

concluded), the Gaynor Order provides 

an alternative basis for concluding that 

Mr. Wolf currently serves as the Acting 

Secretary.64

On November 16, 2020, Acting 

Secretary Wolf ratified any and all 

actions involving delegable duties that 

he took between November 13, 2019, 

through November 16, 2020, including 

the NPRM that is the subject of this 

rulemaking. 

Under section 103(a)(1) of the Act, 8 

U.S.C. 1103(a)(1), the Secretary is 

charged with the administration and 

enforcement of the INA and all other 

immigration laws (except for the 

powers, functions, and duties of the 

President, the Attorney General, and 

certain consular, diplomatic, and 

Department of State officials). The 

Secretary is also authorized to delegate 

his or her authority to any officer or 

employee of the agency and to designate 

other officers of the Department to serve 

as Acting Secretary.65 The Homeland 

Security Act further provides that every 

officer of the Department ‘‘shall perform 

the functions specified by law for the 

official’s office or prescribed by the 

Secretary.’’ 66

Comments: Multiple commenters 

asserted that this rule is ultra vires, 

inconsistent with Congressional intent, 

and a clear violation of the INA. 

Specifically, they contend that the INA 

sets forth the procedure for allocating 

visas and prioritizes the selection of H– 

1B cap-subject petitions in the ‘‘order in 

which they are filed[,]’’ which does not 

limit selection under the H–1B cap to 

those employers who pay the most or 

otherwise authorize DHS to impose 

substantive selection criteria. Several 

commenters stated that USCIS lacks the 

statutory authority to make such a 

change and cannot use the statute’s 

purported silence as an invitation to 

adopt criteria, such as wage level or 

skill level, to prioritize the selection of 

H–1B cap subject visas. Some of these 

commenters also disagreed with DHS 

about the statute’s silence and stated 

that Congress has previously made 

specific modification to the way in 

which H–1B cap numbers are allocated, 

specifically, the American 

Competitiveness in the Twenty-First 

Century Act of 2000 providing for the 

numerically limited exemption for 

beneficiaries who have earned a 

master’s or higher degree from a U.S. 

institution of higher education. If 

Congress intended to make any other 

changes to the statutory language that 

H–1B cap numbers ‘‘shall be issued . . . 

in the order in which petitions are 

filed[,]’’ it could have done so as part of 

that or subsequent legislation. One 

commenter cited several cases in 

arguing that general rulemaking 

authority and statutory silence on an 

issue is not tantamount to Congressional 

authorization for rulemaking on a given 

issue; another commenter stated that the 

statute is neither silent nor ambiguous 

as it states that H–1B visas shall be 

issued, or H–1B status granted, ‘‘in 

order in which petitions are filed’’; and 

a trade association commented that the 

use of the term ‘‘shall’’ indicates that 

there is no ambiguity as to how 

petitions may be sorted. One commenter 

cited several INA provisions in arguing 

that, where it intended to do so, 

Congress made distinctions within 

classes of potential visa applicants, and 

thus the statute reflects Congressional 

intent not to distinguish on other bases. 

One commenter said that the proposed 

rule would be found unlawful in court, 

because the law does not make an 

allowance for basing H–1B visas on 

salary, and the rule is contrary to the 

plain language of the statute. A form 

letter campaign wrote that the law does 

not require employers to pay H–1B 

workers more than U.S. workers, and 

the law does not allow the agency to 

prioritize petitions for higher-wage 

applicants. 

Response: DHS disagrees with the 

commenters’ assertions that the statute 

is not silent or ambiguous and that this 

rulemaking is ultra vires. As stated in 

the NPRM, this rule is consistent with 

and permissible under DHS’s general 

statutory authority provided in INA 

sections 103(a), 214(a) and (c), 8 U.S.C. 

1103(a), 1184(a) and (c), and HSA 

section 102, 6 U.S.C. 112.67 DHS created 

the registration requirement, based on 

its general statutory authority and its 

discretion to determine how best to 

handle simultaneous submissions in 

excess of the numerical allocations, to 

effectively and efficiently administer the 

H–1B cap selection process. Congress 

expressly authorized DHS to determine 

eligibility for H–1B classification upon 

petition by the importing employer, and 

to determine the form and information 

required to establish eligibility.68

‘‘Moreover, INA section 214(g)(3) does 

not provide that petitions must be 

processed in the order ‘received,’ 

‘submitted,’ or ‘delivered.’ Instead, they 

must be processed in the order ‘filed.’ 

What it means to ‘file’ a petition and 

how to handle simultaneously received 

petitions are ambiguous and were not 

dictated by Congress in the 

INA.’’ 69Rather, these implementation 

details are entrusted to DHS to 

administer. So, while the statute 

provides annual limitations on the 

number of aliens who may be issued 

initial H–1B visas or otherwise provided 

H–1B nonimmigrant status, the statute 

does not specify how petitions must be 


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70See 243 F.Supp.3d at 1176. 

71See 243 F.Supp.3d at 1167–68 (finding that 

USCIS’s rule establishing the random-selection 

process was a reasonable interpretation of the INA 

that was entitled at least to Skidmore deference 

because what it means to ‘‘file’’ a petition is 

ambiguous and undefined under the INA and that 

Congress left to the discretion of USCIS how to 

handle simultaneous submissions. Specifically, the 

court said: ‘‘Additionally, because § 1184(g)(3) was 

passed by Congress in 1990 when there was not 

widespread public use of electronic submissions, it 

is logical that Congress anticipated H–1B petitions 

would be submitted either by U.S. mail or other 

carriers. Thus, it was reasonable to anticipate 

multiple petitions would arrive on the same day. It 

is therefore a reasonable interpretation of ‘filed’ to 

include some further administrative step beyond 

mere receipt at a USCIS office to ‘order’ multiple 

petitions that arrived in such a manner on the same 

day.’’). The availability of electronic submission of 

H–1B registrations has not alleviated this issue as 

multiple registrations can still be submitted 

simultaneously. 

72See U.S. Department of Homeland Security, 

U.S. Citizenship and Immigration Services, 

Registration Requirement for Petitioners Seeking To 

File H–1B Petitions on Behalf of Cap-Subject Aliens, 

84 FR 888, 896 (Jan. 31, 2019). 73See Walker Macy, 243 F.Supp.3d at 1175. 

74U.S. Department of Homeland Security, U.S. 

Citizenship and Immigration Services, Registration 

Requirement for Petitioners Seeking to File H–1B 

Petitions on Behalf of Cap-Subject Aliens, 83 FR 

62406 (proposed Dec. 3, 2018). 

selected and counted toward the 

numerical allocations when USCIS 

receives more petitions on the first day 

than are projected as needed to reach 

the H–1B numerical allocations. 

Consequently, ‘‘Congress left to the 

discretion of USCIS how to handle 

simultaneous submissions’’ and ‘‘USCIS 

has discretion to decide how best to 

order those petitions.’’ 70

DHS acknowledges that INA section 

214(g)(3), 8 U.S.C. 1184(g)(3), states that 

aliens subject to the H–1B numerical 

limitation in INA section 214(g)(1), 8 

U.S.C. 1184(g)(1), shall be issued H–1B 

visas or otherwise provided H–1B 

nonimmigrant status ‘‘in the order in 

which petitions are filed for such visas 

or status.’’ Contrary to the commenters’ 

assertions, this statutory provision, and, 

more specifically the term ‘‘filed’’ as 

used in INA section 214(g)(3), 8 U.S.C. 

1184(g)(3), is ambiguous.71 As discussed 

in the preamble to the Registration 

Requirement for Petitioners Seeking to 

File H–1B Petitions on Behalf of CapSubject Aliens Final Rule (H–1B 

Registration Final Rule), an 

indiscriminate application of this 

statutory language would lead to absurd 

or arbitrary results; the longstanding 

approach has been to project the 

number of petitions needed to reach the 

numerical allocations.72

A literal application of this statutory 

language, as suggested by various 

commenters, would lead to an absurd or 

impossible result. The Department of 

State (DOS) does not issue H–1B visas, 

and USCIS does not otherwise provide 

H–1B status, based on the order in 

which petitions are filed. Such a literal 

application would necessarily mean that 

processing delays pertaining to a 

petition earlier in the petition filing 

order would preclude issuance of a visa 

or provision of status to all other H–1B 

petitions later in the petition filing 

order. To avoid such an absurd result, 

the longstanding approach to 

implementing the numerical limitation 

has been to project the number of 

petitions needed to reach the numerical 

limitation. The issue, however, is how 

to select registrations or petitions, as 

applicable, when the number of 

submissions exceeds the number 

projected as needed to reach the 

numerical limitation or the advanced 

degree exemption, particularly when 

those submissions all occur within the 

same narrow window of time. DHS is 

not changing the approach to 

administering the numerical allocations 

as it relates to the use of projections. 

DHS is, however, changing the selection 

process for selecting registrations or 

petitions, as applicable, to determine 

which petitions are properly filed and 

eligible for further processing consistent 

with INA section 214(g)(3), 8 U.S.C. 

1184(g)(3). 

DHS created the registration 

requirement based on its general 

statutory authority and its discretion to 

determine how best to handle 

simultaneous submissions in excess of 

the numerical allocations, to effectively 

and efficiently administer the H–1B cap 

selection process. As provided in the H– 

1B Registration Final Rule, unless 

suspended by USCIS, registration is an 

antecedent procedural step that must be 

completed by prospective petitioners 

before they are eligible to file an H–1B 

cap-subject petition. As with the filing 

of petitions, and as explained above, a 

first-come, first-served basis for 

submitting electronic registrations is 

unreasonable and practically 

impossible. 

While the random selection of 

registrations or petitions, as applicable, 

DHS established in the H–1B 

Registration Final Rule is reasonable, 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. 

In that vein, DHS concludes that 

prioritization and selection based on 

wage levels ‘‘is a reasonable and rational 

interpretation of USCIS’ obligations 

under the INA to resolve the issues of 

processing H–1B petitions’’ 73 in years of 

excess demand and is within DHS’s 

existing statutory authority. 

Comment: Multiple commenters cited 

a USCIS response to a comment in the 

H–1B Registration Final Rule and wrote 

that USCIS previously supported the 

position that prioritization of selection 

based on salary or other substantive 

factors would require explicit 

Congressional authorization. 

Commenters also cited a 1991 

rulemaking in arguing that Immigration 

and Naturalization Service (INS) 

previously acknowledged that the INA 

does not authorize establishing criteria 

to prioritize petitions. These 

commenters also provided language 

from a 1990 INS rulemaking indicating 

that a statutory change would be 

necessary to exclude entry-level H–1B 

workers. A law firm argued that the 

Agency cannot reverse a position of this 

kind without providing a reasoned 

explanation. 

Response: DHS disagrees with the 

commenters that prior statements by 

INS or USCIS preclude DHS from 

making the changes set forth in this 

final rule. DHS acknowledged in the 

proposed rule that the preamble to the 

H–1B Registration Final Rule states that 

prioritization of registration selection on 

factors other than degree level, such as 

salary, would require statutory changes. 

DHS also explained that the prior 

statement did not provide further 

analysis regarding that conclusion and 

that upon further review and 

consideration of the issue initially 

raised in comments to the Registration 

Requirement for Petitioners Seeking to 

File H–1B Petitions on Behalf of CapSubject Aliens NPRM (H–1B 

Registration Proposed Rule),74 DHS 

concluded that the statute is silent as to 

how USCIS must select H–1B petitions, 

or registrations, to be filed toward the 

numerical allocations in years of excess 

demand. DHS continues to believe that 

the changes made in this final rule are 

within its general authority, consistent 

with the existing statute, and despite 

prior statements to the contrary, does 

not require statutory change or explicit 

congressional authorization. DHS is 

relying on its general statutory authority 

to implement the statute and, consistent 

with that authority, is revising the 

regulations to implement a selection 

system that realistically, effectively, 

efficiently, and more faithfully 

administers the cap selection process. 

See INA section 103(a), 214(a) and 

(c)(1), 8 U.S.C. 1103(a), 1184(a) and 

(c)(1). 


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75U.S. Department of Justice, Immigration and 

Naturalization Service, Temporary Alien Workers 

Seeking Classification Under the Immigration and 

Nationality Act, 56 FR 61111 (Dec. 2, 1991). 

76U.S. Department of Justice, Immigration and 

Naturalization Service, Temporary Alien Workers 

Seeking Classification Under the Immigration and 

Nationality Act, 55 FR 2606 (Jan. 26, 1990). 77See 85 FR 69236, 69242. 

78See INA section 214(c)(1), 8 U.S.C. 1184(c)(1). 

See also Walker Macy, 243 F.Supp.3d at 1176 

(‘‘Congress left to the discretion of USCIS how to 

handle simultaneous submissions, [and, 

accordingly], USCIS has discretion to decide how 

best to order those petitions.’’). 

79See 243 F.Supp.3d at 1175. 

80See 243 F.Supp.3d at 1176. 

81See 243 F.Supp.3d at 1175. 

82See Spilker v. Shayne Labs., Inc., 520 F.2d 523, 

525 (9th Cir. 1975) (citing F.T.C. v. Fred Meyer, Inc., 

390 U.S. 341, 349 (1968) (‘‘[W]e cannot, in the 

absence of an unmistakable directive, construe the 

DHS disagrees with the assertion that 

this rule will exclude entry-level 

workers. This final rule merely revises 

how USCIS will select H–1B cap-subject 

petitions toward the H–1B numerical 

allocations to determine which petitions 

are ‘‘filed’’ and eligible for further 

processing. The rule does not change 

substantive eligibility requirements. 

While DHS acknowledges that 

registrations or petitions, as applicable, 

based on a proffered wage that 

corresponds to a level I or level II wage 

likely will face a reduced chance of 

selection in the H–1B cap selection 

process, the rule does not preclude 

selection of registrations or petitions for 

entry-level workers. 

DHS also disagrees with the 

commenters’ claim that the prior 

statements by INS in the preamble to the 

Temporary Alien Workers Seeking 

Classification Under the Immigration 

and Nationality Act final rule are 

relevant to this final rule.75 INS was 

responding to general comments about 

administering the numerical limitation, 

but was not considering how to 

administer the H–1B numerical 

allocations when the number of 

submitted petitions exceeds the 

numerical allocation. Such 

circumstances did not exist at the 

infancy of the H–1B program and when 

the numerical limitation was created, so 

this issue was not considered at that 

time. Again, this final rule merely 

revises how USCIS will select H–1B 

cap-subject registrations or petitions, as 

applicable, toward the H–1B numerical 

allocations to determine which petitions 

are ‘‘filed’’ and thus eligible for further 

processing; in addition, this final rule 

addresses how USCIS will select 

registrations or petitions, as applicable, 

when the number of submitted 

registrations or petitions exceeds the 

projected number needed to reach the 

numerical allocations. Once properly 

filed, H–1B cap-subject petitions 

generally will be processed in order 

based on the assigned filing date. 

DHS also disagrees that comments 

made by INS in the preamble to the 

1990 final rule,76 are relevant to the 

interpretation of DHS’s authority to 

implement the numerical allocations 

under the existing statute. The 1990 rule 

preceded the enactment of the 

Immigration Act of 1990 (IMMACT 90), 

Public Law 101–649, 104 Stat. 4978, the 

creation of the H–1B classification for 

specialty occupation workers, and the 

implementation of a numerical 

limitation on H–1B workers. As such, 

the statements cited by the commenter 

are not relevant to the interpretation of 

the existing statute, including the 

authority of DHS to administer the H– 

1B numerical allocations. 

Comment: A company stated that 

USCIS’ ability to interpret the term 

‘‘filed’’ is not unlimited and that the 

proposed, complex prioritization 

scheme unambiguously exceeds the 

scope of the term. Similarly, a law firm 

and individual argued that, according to 

Walker Macy v. USCIS, USCIS does not 

have ‘‘unfettered’’ discretion to 

determine which petitions are filed, but, 

instead, must reasonably interpret the 

statute. The law firm said the proposed 

interpretation is unreasonable because 

of the impacts it would have on U.S. 

companies and innovation. Multiple 

commenters said that the current system 

of putting applicants in a lottery when 

they apply simultaneously comports 

with the INA’s language, but that the 

proposed methodology would 

impermissibly deviate from the INA. 

Similarly, a company stated that 

Congress’ guiding principal for selecting 

H–1B petitions is timing and that the 

current lottery system conforms to this 

principal. An individual commenter 

similarly argued, citing Walker Macy v. 

USCIS, that the proposed rule deviates 

from the temporal principal without 

statutory or judicial basis. Other 

commenters asserted that USCIS’ 

reference to the ‘‘dominant legislative 

purpose’’ of the statute, construed as 

prioritizing the application of the most 

skilled workers, is unreasonable. The 

commenters reasoned that the INA 

simply prioritizes filling labor shortages, 

without regard to wage levels. Several 

commenters stated that the allowance of 

H–1B visas for aliens with 

undergraduate degrees precludes 

prioritizing petitions based on wage 

levels. 

Response: DHS disagrees with the 

commenters’ assertions that this rule 

misstates the scope of the term ‘‘filed’’ 

or that the rule is based on an 

unreasonable interpretation of the 

statute. As stated in the NPRM and in 

response to other comments in this 

preamble, DHS believes that this rule is 

consistent with and permissible under 

DHS’s general statutory authority 

provided in INA sections 103(a), 214(a) 

and (c), 8 U.S.C. 1103(a), 1184(a) and 

(c), and HSA section 102, 6 U.S.C. 

112.77 DHS created the registration 

requirement, based on its general 

statutory authority and its discretion to 

determine how best to handle 

simultaneous submissions in excess of 

the numerical allocations (i.e., 

situations where prioritizing petitions 

solely in a temporal manner is 

impossible), to effectively and 

efficiently administer the H–1B cap 

selection process. Congress expressly 

authorized DHS to determine eligibility 

for H–1B classification upon petition by 

the importing employer, and to 

determine the form and information 

required to establish eligibility.78

‘‘Moreover, INA section 214(g)(3) does 

not provide that petitions must be 

processed in the order ‘received,’ 

‘submitted,’ or ‘delivered.’ Instead, they 

must be processed in the order ‘filed.’ 

What it means to ‘file’ a petition and 

how to handle simultaneously received 

petitions are ambiguous and were not 

dictated by Congress in the 

INA.’’ 79Rather, these implementation 

details are entrusted for DHS to 

administer. So, while the statute 

provides annual limitations on the 

number of aliens who may be issued 

initial H–1B visas or otherwise provided 

H–1B nonimmigrant status, the statute 

does not specify how petitions must be 

selected and counted toward the 

numerical allocations when USCIS 

receives more petitions on the first day 

than are projected as needed to reach 

the H–1B numerical allocations. 

Consequently, ‘‘Congress left to the 

discretion of USCIS how to handle 

simultaneous submissions’’ and ‘‘USCIS 

has discretion to decide how best to 

order those petitions.’’ 80

DHS believes, contrary to 

commenters’ assertions, that 

prioritization and selection generally 

based on the highest OES wage level 

that the proffered wage equals or 

exceeds ‘‘is a reasonable and rational 

interpretation of USCIS’s obligations 

under the INA to resolve the issues of 

processing H–1B petitions’’ 81 in years of 

excess demand and is within DHS’s 

existing statutory authority. ‘‘It is a 

cardinal canon of statutory construction 

that statutes should be interpreted 

harmoniously with their dominant 

legislative purpose.’’ 82 Yet, under the 


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Act in a manner which runs counter to the broad 

goals which Congress intended it to effectuate.’’)). 

83See U.S. Department of Homeland Security, 

U.S. Citizenship and Immigration. Services, Office 

of Policy and Strategy, Policy Research Division, 

H–1B Wage Level by Top 25 Metro, Database 

Queried: July 10, 2020, Report Created: July 14, 

2020, Systems: C3 via SASPME, DOL OFLC 

Performance DATA H1B for 2018, 2019, Bureau of 

Labor Statistics: Occupational Employment 

Statistics for 2018, 2019 (establishing that, for the 

top 25 metropolitan service areas for which H–1B 

beneficiaries were sought in FYs 2018 and 2019, all 

level I wages, 84% of level II wages, and 76% of 

‘‘No Wage Level’’ wages fell below the Bureau of 

Labor Statistics median wages); Daniel Costa and 

Ron Hira, H–1B Visas and Prevailing Wage Level, 

Economic Policy Institute (May 4, 2020), https://

www.epi.org/publication/h-1b-visas-and-prevailingwage-levels/ (explaining that ‘‘three-fifths of all H– 

1B jobs were certified at the two lowest prevailing 

wages in 2019...., and, ‘‘[i]n fiscal year (FY) 2019, 

a total of 60% of H–1B positions certified by 

Department of Labor (DOL) had been assigned wage 

levels [I and II]: 14% were at H–1B Level 1 (the 17th 

percentile) and 46% per at H–1B Level 2 (34th 

percentile)’’). Data concerning FY 2018 and 2019 

petition filings pre-dates the publication of the DOL 

IFR, 85 FR 63872. 

84See H.R. Rep. 101–723(I) (1990), as reprinted in 

1990 U.S.C.C.A.N. 6710, 6721 (stating ‘‘The U.S. 

labor market is now faced with two problems that 

immigration policy can help to correct. The first is 

the need of American business for highly skilled, 

specially trained personnel to fill increasingly 

sophisticated jobs for which domestic personnel 

cannot be found and the need for other workers to 

meet specific labor shortages’’). 

85 85 FR 69236, 69242. 

86See INA section 214(c)(1), 8 U.S.C. 1184(c)(1). 

See also Walker Macy, 243 F.Supp.3d at 1176 

(‘‘Congress left to the discretion of USCIS how to 

handle simultaneous submissions, [and 

accordingly], USCIS has discretion to decide how 

best to order those petitions.’’). 

87See 243 F.Supp.3d at 1175. 

88See 243 F.Supp.3d at 1176. 

current registration system the majority 

of H–1B cap-subject petitions have been 

filed for positions certified at the two 

lowest wage levels: I and II.83 This 

contradicts the dominant legislative 

purpose of the statute because 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.84 By changing 

the selection process, for these years of 

excess demand, from a random lottery 

selection to a wage-level-based selection 

process, DHS will implement the statute 

more faithfully to its dominant 

legislative purpose, increasing 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. 

Comments: A couple of commenters 

said the changes made by the rule 

should be decided by Congress. 

Similarly, a few commenters stated 

generally that the proposal is not 

authorized by Congress or is in violation 

of Congressional intent. A few 

commenters said that 8 U.S.C. 

1184(g)(5)(C) (the exemption from the 

cap for beneficiaries who have earned a 

master’s or higher degree from a U.S. 

institution of higher education) 

demonstrates that, where Congress 

intends to target petitions for highly 

skilled workers, it has done so 

explicitly. Others commented that, 

when this cap was legislated, it was 

clear that petitions still would exceed 

visa allocations and that the statute 

should be understood to have 

intentionally omitted any change to the 

priority of visa petitions; and one 

commenter added that the proposed 

rule would impact the ratio of 

advanced-degree holders to other H–1B 

recipients that Congress authorized 

when providing the 20,000 U.S. 

advanced degree exemption. A company 

stated that the proposal is untethered to 

statutory language, providing examples 

of Congressional ‘‘guidance’’ and 

reasoning that nowhere in such 

guidance or the INA is there reference 

to salary or the OES prevailing wage 

level as a basis for selecting H–1B 

petitions. A professional association 

stated that effectively imposing an 

additional wage requirement would be 

inappropriate, especially for physicians. 

Response: DHS disagrees with these 

comments. As stated in the NPRM and 

as explained above, this rule is 

consistent with Congressional intent 

and is permissible under DHS’s general 

statutory authority provided in INA 

sections 103(a), 214(a) and (c), 8 U.S.C. 

1103(a), 1184(a) and (c), and HSA 

section 102, 6 U.S.C. 112.85

Furthermore, DHS disagrees with the 

commenters’ assertions that the statute, 

or legislative history, indicates that 

Congress has spoken to the specific 

issue addressed by this final rule: how 

to select petitions toward the numerical 

allocations when the number of 

petitions filed is greater than the 

number of petitions projected as needed 

to reach the H–1B numerical 

allocations. As explained in the NPRM 

and in response to other comments, the 

statute is silent on this issue. DHS 

created the registration requirement, 

based on its general statutory authority 

and its discretion to determine how best 

to handle simultaneous submissions in 

excess of the numerical allocations, to 

effectively and efficiently administer the 

H–1B cap selection process. Congress 

expressly authorized DHS to determine 

eligibility for H–1B classification upon 

petition by the importing employer, and 

to determine the form and information 

required to establish eligibility.86

‘‘Moreover, INA section 214(g)(3) does 

not provide that petitions must be 

processed in the order ‘received,’ 

‘submitted,’ or ‘delivered.’ Instead, they 

must be processed in the order ‘filed.’ 

What it means to ‘file’ a petition and 

how to handle simultaneously received 

petitions are ambiguous and were not 

dictated by Congress in the 

INA.’’ 87Rather, these implementation 

details are entrusted for DHS to 

administer. Nor should it be understood 

that Congress had spoken on this issue 

when the cap was legislated because it 

was not clear at that time that petitions 

would exceed visa allocations on the 

very first day that petitions could be 

filed, thus leading to a situation where 

prioritizing petitions solely in a 

temporal manner is impossible. So, 

while the statute provides annual 

limitations on the number of aliens who 

may be issued initial H–1B visas or 

otherwise provided H–1B nonimmigrant 

status, the statute does not specify how 

petitions must be selected and counted 

toward the numerical allocations when 

USCIS receives more petitions on the 

first day than are projected as needed to 

reach the H–1B numerical allocations. 

Consequently, ‘‘Congress left to the 

discretion of USCIS how to handle 

simultaneous submissions’’ and ‘‘USCIS 

has discretion to decide how best to 

order those petitions.’’ 88

Comments: Some commenters 

expressed that this rule is not consistent 

with the statutory framework Congress 

implemented for the admission of 

foreign workers into the United States, 

as Congress designated DOL to have the 

primary authority in protecting and 

enforcing the statute related to the U.S. 

labor market and wages. Multiple 

commenters stated that Congress did not 

intend for wage levels to serve as a basis 

for preferring certain petitions, as 

evidenced by the statute’s prevailing 

wage requirement. An individual 

commented that the preamble’s 

statement that ‘‘Congress expressly 

authorized DHS to determine eligibility 

for H–1B classification upon petition by 

the importing employer’’ fails to 

recognize that this authorization is for 

USCIS’ determination regarding specific 

employers’ applications, rather than for 

categorically determining which wages 

or jobs qualify for H–1B visas. 

Response: DHS disagrees with the 

commenters assertion that this rule is 

inconsistent with the statute. As 

explained in the NPRM and in response 

to other comments, DHS believes that 

this rule is consistent with its statutory 

authority. DHS agrees that DOL has the 

primary authority to protect the wages 

and working conditions of U.S. workers 

consistent with the provisions of INA 

section 212(n), 8 U.S.C. 1182(n), but 


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89The O–1 nonimmigrant classification is for 

aliens with extraordinary ability in the sciences, 

arts, education, business, or athletics, or who have 

a demonstrated record of extraordinary 

achievement in the motion picture and television 

industry. See INA section 101(a)(15)(O), 8 U.S.C. 

1101(a)(15)(O); 8 CFR 214.2(o). 

90See Walker Macy, 243 F.Supp.3d at 1176. 

91H.R. Rep. 101–723(I) (1990), as reprinted in 

1990 U.S.C.C.A.N. 6710, 6721 (stating ‘‘The U.S. 

those provisions are separate from INA 

section 214, 8 U.S.C. 1184, and the 

statutory provisions pertaining to the 

form and manner of submitting H–1B 

petitions and the administration of the 

H–1B numerical allocations, both of 

which are within DHS’s authority 

consistent with INA section 214, 8 

U.S.C. 1184. Further, the fact that 

Congress authorized DOL to administer 

and enforce a wage requirement, 

including setting prevailing wage levels 

for the H–1B program, does not speak to 

or limit DHS’ authority to establish an 

orderly, efficient, and fair system for 

selecting registrations (or, if applicable, 

petitions), based on OES prevailing 

wage levels, toward the projected 

number needed to reach annual H–1B 

numerical allocations. 

Comments: Multiple commenters, as 

part of a form letter campaign, stated 

that the legal impact of the proposed 

rule must be considered together with 

other recent rules, including the 

recently published DOL. Another 

commenter stated that USCIS should 

work with DOL to appropriately set up 

the wage levels. 

Response: On December 1, 2020, the 

U.S. District Court for the Northern 

District of California issued an order in 

Chamber of Commerce, et al. v. DHS, et 

al., No. 20–cv–7331, setting aside the 

DOL IFR. Similarly, on December 3, 

2020, the U.S. District Court for the 

District of New Jersey issued a 

preliminary injunction in ITServe 

Alliance, Inc., et al. v. Scalia, et al., No. 

20–cv–14604, applying to the plaintiffs 

in that case. DOL has taken necessary 

steps to comply with the courts’ orders 

and is no longer implementing the DOL 

IFR. DHS, therefore, disagrees with the 

commenter’s assertion that DHS must 

consider the DOL IFR in the context of 

this final rule. 

DHS also disagrees with the premise 

of the commenters’ recommendation 

that DHS work with DOL to set 

appropriate wage levels. This final rule 

is not setting wage levels. As explained 

in the NPRM and in response to other 

comments, this final rule changes how 

DHS will select registrations or 

petitions, as applicable, toward the 

projected number needed to reach the 

annual H–1B numerical allocations. 

While this final rule uses DOL wage 

levels to determine how to rank and 

select registrations or petitions, as 

applicable, based generally on the wage 

level that the proffered wage equals or 

exceeds, this final rule is not mandating 

employers pay a higher wage nor is it 

changing wage levels. 

Comments: One commenter noted the 

proposal would make the H–1B process 

similar to that of the O–1 visa, but that 

Congress knowingly avoided doing so in 

1990. According to the commenter, the 

new rule, in effect, is redrafting the 1990 

legislation to make the H–1B visa more 

closely resemble the O–1 visa and 

Congress certainly could have ranked 

H–1Bs in 1990 if it wanted to do so. 

Other commenters also noted that the 

O–1 visa is for those with extraordinary 

ability, not those just starting their 

careers, and that the H–1B program 

serves different purposes. Another 

commenter also cited a House sponsor 

of the H–1B program as saying that the 

O–1 program, not H–1B, was the ‘‘best 

and brightest’’ program. 

Response: DHS disagrees with the 

claim that it is reforming the H–1B 

classification to more closely resemble 

the O–1 classification.89 While DHS 

acknowledges that this rule will result 

in more registrations (or petitions, as 

applicable) being selected for relatively 

higher-paid, higher-skilled beneficiaries, 

the rule is not changing substantive 

eligibility requirements for the H–1B 

classification and is not, in any way, 

reforming the H–1B classification to 

more closely resemble the O–1 

classification. This final rule merely fills 

in a statutory gap regarding how to 

administer the H–1B numerical 

allocations in years of excess demand. 

The statute provides annual limitations 

on the number of aliens who may be 

issued initial H–1B visas or otherwise 

provided H–1B nonimmigrant status, 

but it does not specify how petitions 

must be selected and counted toward 

the numerical allocations when USCIS 

receives more petitions on the first day 

than are projected as needed to reach 

the H–1B numerical allocations. 

Consequently, ‘‘Congress left to the 

discretion of USCIS how to handle 

simultaneous submissions’’ and ‘‘USCIS 

has discretion to decide how best to 

order those petitions.’’ 90The current 

scheme of pure randomization of 

selectees does not optimally serve 

Congress’ purpose for the H–1B 

program. Therefore, this rule will revise 

the H–1B cap selection process to better 

align with the purpose of the H–1B 

program and Congressional intent, 

taking into account the pervasive 

oversubscription of demand for 

registrations and petitions. 

Comment: An individual noted that 

Congress previously considered 

legislation called the I-Squared Act that 

sought to alter the selection process by 

ranking H–1Bs based on a number of 

factors rather than having a random 

lottery. That legislation has not passed, 

which is an indicator that Congress does 

not see the change as a priority. 

Conversely, an individual commenter 

wrote that Congress intended to delegate 

H–1B visa allocation to USCIS and that 

the I-Squared bill failed because of other 

provisions it contained. 

Response: DHS disagrees with the 

assertion that the fate of the I-Squared 

bill is relevant to interpretation of the 

existing statute. While Congress has 

considered such legislation, the failure 

of such legislation (or any other 

proposed legislation) to be passed and 

signed into law does not change the 

existing authority DHS has under the 

INA. As explained in response to other 

comments, DHS believes that selection 

of registrations or petitions, as 

applicable, based on corresponding 

wage level is consistent with the 

discretion provided to DHS in the 

current statute to administer the annual 

H–1B numerical allocations. 

Comment: A few commenters cited 

the Senate Report for The American 

Competitiveness Act as demonstrating 

Congressional opposition to granting H– 

1B visas on a preferential basis to the 

highest-paid aliens. The commenters 

argued that the language of the Senate 

Report contradicts E.O. 13788 and that 

E.O. 13788 does not establish 

Congressional purpose or policy, and its 

emphasis on highly paid beneficiaries as 

applied in this context would be 

inconsistent with Congress’ direction. 

Response: DHS disagrees with these 

comments because they ignore the fact 

that DHS has proposed to modify the 

registration requirement within the 

context of the annual demand for H–1B 

cap-subject petitions, including those 

filed for the advanced degree 

exemption, consistently exceeding 

annual statutory allocations. 

Although Congress instructed that 

cap-subject H–1B visas (or H–1B 

nonimmigrant status) be allocated based 

on the order in which petitions are filed, 

it was silent with regard to the 

allocation of simultaneously submitted 

petitions. While the random lottery 

selection process is a reasonable 

solution, DHS believes that an 

allocation generally based on the 

highest OES prevailing wage level that 

the proffered wage equals or exceeds 

better fulfills Congress’ stated intent that 

the H–1B program help U.S. employers 

fill labor shortages in positions 

requiring highly skilled workers.91


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labor market is now faced with two problems that 

immigration policy can help to correct. The first is 

the need of American business for highly skilled, 

specially trained personnel to fill increasingly 

sophisticated jobs for which domestic personnel 

cannot be found and the need for other workers to 

meet specific labor shortages’’). 

92 85 FR 69236, 69238. 

93 85 FR 69236, 69238. 

94See Proclamation 10052 of June 22, 2020, 

Suspension of Entry of Immigrants and 

Nonimmigrants Who Present a Risk to the United 

States Labor Market During the Economic Recovery 

Following the 2019 Novel Coronavirus Outbreak, 85 

FR 38263 (June 25, 2020). 

95 85 FR 69236, 69243. See also H–1B Registration 

Final Rule, 84 FR 888, 900 (‘‘submission of the 

registration is merely an antecedent procedural 

requirement to properly file the petition. It is not 

intended to replace the petition adjudication 

process or assess the eligibility of the beneficiary for 

the offered position.’’). 

This legislative history, as cited in the 

proposed rule, is consistent with the 

Senate Report the commenters cite.92

Both support the notion that Congress 

intended the H–1B program to fill labor 

shortages in positions requiring highly 

skilled workers. Contrary to the 

commenter’s assertion that DHS only 

cited to E.O. 13788 to support this 

priority, DHS cited to the legislative 

history of the Immigration Act of 1990, 

the legislation that created the H–1B 

program, to support the priority to 

allocate generally based on the highest 

OES prevailing wage level that the 

proffered wage equals or exceeds.93 DHS 

cited to E.O. 13788 solely to note that 

a wage-level based selection was 

consistent with the administration’s 

policy goals, not as legal authority for 

the proposed rule. 

Comment: An individual commenter 

and a professional association argued 

that Presidential Proclamation 10052 is 

not authoritative to the extent that it 

conflicts with the INA, and that the 

proposal fails to explain how it ‘‘is 

consistent with applicable law or is 

practicable at this point in time,’’ 

especially in light of the forthcoming 

change in administration. 

Response: DHS disagrees with the 

assertion that Presidential Proclamation 

10052 conflicts with the INA.94 In any 

event, the authority for this regulation 

stems not from that proclamation but 

from DHS’s general statutory authority 

provided in INA sections 103(a), 214(a) 

and (c), 8 U.S.C. 1103(a), 1184(a) and 

(c), and HSA section 102, 6 U.S.C. 112. 

Comment: One commenter stated that 

salary also is a proxy variable for age, 

as, in most industries, more experienced 

individuals get paid higher wages. This 

commenter asked whether USCIS has 

the authority to apply ‘‘salary’’ as a 

secondary sorting mechanism for H–1B 

registrations, and if so, what would 

prevent USCIS also from using arbitrary 

sorting mechanisms such as age, 

geography, country of birth, race, 

religion, or gender. 

Response: DHS disagrees that salary is 

a proxy for age. While salary is a 

reasonable proxy for skill, level of skill 

is not necessarily correlated to age. DHS 

also disagrees with the commenter’s 

implied assertion that wage level is an 

arbitrary sorting mechanism. As 

explained in the NPRM and in response 

to other comments, corresponding wage 

level is an objective way to prioritize 

selection in a manner consistent with 

the general purpose of the H–1B 

classification. DHS has not proposed, 

and does not intend to propose, 

selecting registrations or petitions, as 

applicable, based on factors that are 

unreasonable, inappropriate, or 

inconsistent with the purpose of the 

H–1B classification. 

2. Substantive Comments on the Need 

for the Rule/DHS Justification 

Comments: An anonymous 

commenter wrote that the proposed 

rule’s wage standard for H–1B visa 

eligibility is arbitrary and capricious. 

The commenter said that DHS does not 

explain the rationale behind making 

wages the sole indicator of a worker’s 

eligibility for visa sponsorship. The 

commenter also argued that the rule’s 

rationale is flawed because it would not 

protect U.S. workers, since the H–1B 

visa applies only to specialty 

occupations. Another commenter 

opined that this rule is an attempt to 

add a new wage requirement as a part 

of H–1B eligibility. This commenter 

stated that this attempt is inconsistent 

with Congressional intent and would be 

an abuse of discretion by the 

Department. 

Response: DHS believes these 

commenters misstate the scope of this 

rule. This rule does not make ‘‘wages 

the sole indicator of a worker’s 

eligibility for [H–1B] visa sponsorship’’ 

and does not otherwise change the 

substantive standards for H–1B 

eligibility. DHS stated in the NPRM that 

registration, when required, is merely an 

antecedent procedural step that must be 

completed by prospective petitioners 

before they are eligible to file an H–1B 

cap-subject petition (emphasis added).95

Even if registration were suspended, the 

rule merely revises how USCIS would 

select H–1B cap-subject petitions 

toward the H–1B numerical allocations 

to determine which petitions are ‘‘filed’’ 

and thus eligible for further processing. 

But the rule does not change substantive 

eligibility requirements. DHS also 

disagrees with the commenter’s 

assertion that the rule would not better 

protect U.S. workers. As explained in 

response to other comments, prioritizing 

the selection of H–1B registrations or 

petitions, as applicable, based generally 

on the highest OES prevailing wage 

level that the proffered wage equals or 

exceeds will incentivize employers to 

offer higher wages or higher-skilled 

positions to H–1B workers and 

disincentivize the existing widespread 

use of the H–1B program to fill 

relatively lower-paid or lower-skilled 

positions, for which there may be 

available and qualified U.S. workers. 

DHS, therefore, believes that this rule 

will benefit U.S. workers who compete 

against entry-level H–1B workers and 

will incentivize H–1B petitioners to 

offer higher wages, further benefiting 

U.S. workers whose wages might 

otherwise be depressed by an influx of 

relatively lower-paid, lower-skilled H– 

1B workers. 

a. Support for the DHS Rationale 

Comments: Many commenters 

expressed support for the proposed rule 

and DHS justification. Several 

commenters stated that the proposed 

rule is based on a true premise that 

salary equates with value. A research 

organization stated that there is no 

evidence to suggest that the H–1B 

program was designed to fill entry-level 

jobs at entry-level wages, and 

prioritizing H–1B petitions at high wage 

levels will safeguard U.S. wage 

standards and increase labor efficiency. 

The commenter went on to state that 

prioritizing higher H–1B wage levels 

will not undermine the program, but, 

rather, will incentivize recruitment and 

retention, while also helping U.S. 

workers in labor categories that have 

seen stagnant wage growth in recent 

history. The commenter reasoned that, 

because employers do not have to test 

the market before hiring H–1B workers, 

wages are a good indicator of the actual 

market need for workers in a given field. 

Response: DHS agrees with these 

commenters and thanks them for their 

support. 

b. Rule Is Based on False Premises/ 

Rationale 

Comment: Many commenters, 

including those who participated in an 

orchestrated form letter campaign, 

stated that the proposal is based on the 

false premise that salary alone equates 

with value and that individuals who 

earn more in their profession contribute 

more to the economy. An individual 

commenter discussed the fundamental 

flaw in associating level I and level II 

workers with low-paying, low-skilled 

work, where in reality, entry-level 

doctors, lawyers, engineers, and 


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96U.S. Department of Labor, Education and Pay 

Level, https://www.dol.gov/general/topic/wages/ 

educational (‘‘Generally speaking, jobs that require 

high levels of education and skill pay higher wages 

than jobs that require few skills and little 

education.’’) (last visited Dec. 21, 2020). See also Ed 

Andrews, Relationship between Skills and Wages, 

Smart Solutions Group (Dec. 2015), http://

smartsolutionsgroup.net/wp-content/uploads/2015/ 

12/Relationship-Between-Skills-and-Wages.pdf 

(‘‘There is a very strong correlation between Skills 

Levels and Wages—as expected, higher skills levels 

have higher wages and low skill levels have lower 

wages.); DOL IFR, 85 FR 63872 (it is a ‘‘largely selfevident proposition that workers in occupations 

that require sophisticated skills and training receive 

higher wages based on those skills.’’). 

97See Kirk Doran et al., The Effects of HighSkilled Immigration Policy on Firms: Evidence from 

Visa Lotteries, University of Notre Dame (Feb. 

2016), https://gspp.berkeley.edu/assets/uploads/ 

research/pdf/h1b.pdf (noting that ‘‘additional H– 

1Bs lead to lower average employee earnings and 

higher firm profits’’ and the authors’ ‘‘results are 

more supportive of the narrative about the effects 

of H–1Bs on firms in which H–1Bs crowd out 

alternative workers, are paid less than the 

alternative workers whom they crowd out, and thus 

increase the firm’s profits despite no measurable 

effect on innovation’’); John Bound et al., 

Understanding the Economic Impact of the H–1B 

Program on the U.S., Working Paper 23153, 

National Bureau of Economic Research (Feb. 2017), 

http://www.nber.org/papers/w23153 (‘‘In the 

absence of immigration, wages for US computer 

scientists would have been 2.6% to 5.1% higher 

and employment in computer science for US 

workers would have been 6.1% to 10.8% higher in 

2001.’’). 

98See e.g., Hal Salzman, Daniel Kuehn, and B. 

Lindsay Lowell, Guestworkers in the High-Skill U.S. 

Labor Market: An analysis of supply, employment, 

and wage trends, Economic Policy Institute (Apr. 

24, 2013), at 26, https://files.epi.org/2013/bp359- 

guestworkers-high-skill-labor-market-analysis.pdf 

(‘‘In other words, the data suggest that current U.S. 

immigration policies that facilitate large flows of 

guestworkers appear to provide firms with access to 

labor that will be in plentiful supply at wages that 

are too low to induce a significantly increased 

supply from the domestic workforce..’’); Ron Hira 

and Bharath Gopalaswamy, Reforming US’ HighSkilled Guestworker Program, Atlantic Council (Jan. 

2019), at 11, https://www.atlanticcouncil.org/wpcontent/uploads/2019/09/Reforming_US_HighSkilled_Guestworkers_Program.pdf (‘‘By every 

architects are professionals performing 

specialty occupations. A professional 

association stated that the salaries 

associated with each wage level do not 

fully capture an individual’s 

contribution to society; in fact, there 

often is an inverse correlation. A 

professional association said DHS has 

created a condition where employers 

would be able to buy their way into the 

proposed H–1B visa cap selection 

system by offering a higher wage to the 

beneficiary regardless of skill, which 

would negate the stated purpose of the 

proposed rule to garner more highskilled workers in the U.S. workforce. 

Some commenters said the proposed 

rule is based on the false premise that 

foreign workers depress wages and take 

away jobs from U.S. workers. A 

university stated that the foreign 

workers this rule targets fill critical 

needs in the U.S. labor market, bolster 

innovation, create jobs, and drive 

economic growth. The commenter, 

along with an individual commenter, 

stated that some studies show foreign 

workers have a positive impact on 

wages overall. Similarly, an advocacy 

group said limiting the amount of highskilled foreign workers in the United 

States does not mean that there will be 

more jobs available to U.S. workers; 

rather, it would mean many companies 

would shift jobs overseas. The 

commenter stated that, if the H–1B 

program were expanded, it could result 

in up to 1.2 million new jobs for U.S. 

workers. The commenter went on to 

state that the program does not have a 

‘‘depressive effect’’ on U.S. worker 

wages, and concluded by saying that, by 

restricting the H–1B program, the 

proposed rule would not have the 

intended effects of boosting American 

jobs and wages. An individual 

commenter stated that USCIS already 

has protected U.S. workers by 

increasing fees and updating the 

definition of ‘‘specialized knowledge,’’ 

and there is no need to distort the labor 

markets and harm U.S. competitiveness 

at a time when the U.S. can once again 

be a leader in technology development. 

Response: DHS disagrees with these 

comments. DHS believes that salary 

generally is a reasonable proxy for skill 

level.96 As stated in the NPRM, in most 

cases where the proffered wage equals 

or exceeds the prevailing wage, a 

prevailing wage rate reflecting a higher 

wage level is a reasonable proxy for the 

higher level of skill required for the 

position, based on the way prevailing 

wage determinations are made. DHS 

believes that an employer who offers a 

higher wage than required by the 

prevailing wage level does so because 

that higher wage is a clear reflection of 

the beneficiary’s value to the employer, 

which, even if not related to the 

position’s skill level per se, reflects the 

unique qualities the beneficiary 

possesses. While we believe that the 

rule may incentivize an employer to 

proffer a higher wage to increase their 

chances of selection, we also believe the 

employer only would do so if it was in 

their economic interest to do so based 

on the beneficiary’s skill level and 

relative value to the employer. 

DHS acknowledges that aliens may be 

offered salaries at level I or level II 

prevailing wages to work in specialty 

occupations and may be eligible for H– 

1B status. However, DHS also believes 

that, in years of excess demand 

exceeding annual limits for H–1B visas 

subject to the numerical allocations, the 

current process of random selection 

does not optimally serve Congress’ 

purpose for the H–1B program. Instead, 

in years of excess demand, selection of 

H–1B cap-subject petitions on the basis 

of the highest OES prevailing wage level 

that the proffered wage equals or 

exceeds is more consistent with the 

purpose of the H–1B program and 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.97

DHS does not agree that the rule will 

limit or restrict the number of H–1B 

workers, and that is not the rule’s intent. 

DHS also does not agree that this rule 

will result in companies shifting jobs 

overseas or will harm U.S. 

competitiveness. Rather, DHS believes 

that the admission of higher-skilled 

workers would benefit the economy and 

increase the United States’ competitive 

edge in the global labor market. 

Comment: An individual commenter 

stated that the lowest paid H–1B worker 

makes more than H–2 workers, and yet, 

the administration has expanded the H– 

2 guest worker program and is presently 

seeking to lower prevailing wages for 

these workers, suggesting that 

‘‘increasing the wages paid to foreign 

workers is not actually a consistent 

policy or priority for the 

administration.’’ The commenter also 

said the NPRM’s reference to incidents 

of long-time U.S. employees being laid 

off in favor of younger workers are 

actually more complicated and show the 

declining enrollment in IT and STEM 

fields by U.S. students. The commenter 

went on to say that H–1B workers are 

more costly than U.S. workers, which 

demonstrates that there are not enough 

similarly situated U.S. workers. 

Response: DHS disagrees with the 

commenter’s assertions. Regarding the 

H–2 program, DHS disagrees that the 

administration’s policies have been 

inconsistent, as these programs serve 

different purposes. As DHS has stated 

above and in the NPRM, 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. DHS believes 

that this rule reflects that intent more 

faithfully than a random selection 

process. DHS also disagrees that the 

instances cited in the NPRM of U.S. 

employers replacing qualified and 

skilled U.S. workers with relatively 

lower-skilled H–1B workers shows 

declining enrollment in STEM fields by 

U.S. students, and does not agree with 

the commenter’s assessment regarding 

insufficient U.S. workers.98 Actually, 


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objective measure, most H–1B workers have no 

more than ordinary skills, skills that are abundantly 

available in the US labor market. That means they 

are likely competing with (and substituting for) US 

workers, rather than complementing them as was 

the program’s intention . . . H–1B workers are 

underpaid and placed in substandard working 

conditions, while US workers’ wages are depressed, 

and they lose out on job opportunities’’). 

99See Ron Hira and Bharath Gopalaswamy, 

Reforming US’ High-Skilled Guestworker Program, 

Atlantic Council (Jan. 2019), at 7, https://

www.atlanticcouncil.org/wp-content/uploads/2019/ 

09/Reforming_US_High-Skilled_Guestworkers_

Program.pdf (‘‘Further examining the career 

transitions of these graduates, we look at the 

reasons why a third of computer science graduates, 

and nearly half of engineering graduates, do not go 

into a job directly related to their degree (Figure E). 

For computer science graduates employed one year 

after graduation (i.e., excluding those unemployed 

or in graduate school), about half of those who took 

a job outside of IT say they did so because the 

career prospects were better elsewhere, and roughly 

a third because they couldn’t find a job in IT. For 

engineering graduates, it’s about an even split, with 

approximately one-third each saying they did not 

enter an engineering job either because of career 

prospects or they couldn’t find an engineering job. 

In short, of those graduates with the most ITrelevant education, a large share report they were 

unable to find an IT job while others found IT jobs 

to be paying lower wages or offering less attractive 

working conditions and career prospects than other, 

non-STEM jobs.’’). 

100See Daniel Costa and Ron Hira, H–1B Visas 

and Prevailing Wage Level, Economic Policy 

Institute (May 4, 2020), https://www.epi.org/ 

publication/h-1b-visas-and-prevailingwage-levels/ 

(explaining that the H–1B allows employers to use 

the H–1B program ‘‘to pay [H–1B] workers well 

below market wages’’ and ‘‘undercut local wages’’). 

101See Ron Hira and Bharath Gopalaswamy, 

Reforming US’ High-Skilled Guestworker Program, 

Atlantic Council (Jan. 2019), https://

www.atlanticcouncil.org/wp-content/uploads/2019/ 

09/Reforming_US_High-Skilled_Guestworkers_

Program.pdf (‘‘The current system not only harms 

Americans; it also enables H–1B workers to be 

exploited. H–1B workers themselves are underpaid, 

vulnerable to abuse, and frequently placed in poor 

working conditions.’’). 

102See, e.g., Kirk Doran et al., The Effects of HighSkilled Immigration Policy on Firms: Evidence from 

Visa Lotteries, University of Notre Dame (Feb. 

2016), https://gspp.berkeley.edu/assets/uploads/ 

research/pdf/h1b.pdf; John Bound et al., 

Understanding the Economic Impact of the H–1B 

Program on the U.S., Working Paper 23153, 

National Bureau of Economic Research (Feb. 2017), 

http://www.nber.org/papers/w23153; Daniel Costa 

and Ron Hira, H–1B Visas and Prevailing Wage 

Level, Economic Policy Institute (May 4, 2020), 

https://www.epi.org/publication/h-1b-visas-andprevailing-wage-levels/. 

103See, e.g., Neil G. Ruiz and Jens Manuel 

Krogstad, Salaries Have Risen for High-Skilled 

Foreign Workers in U.S. on H–1B Visas, Pew 

Research Center (Aug. 16, 2017), https://

www.pewresearch.org/facttank/2017/08/16/ 

salaries-have-risen-for-high-skilled-foreign-workersin-u-s-on-h-1b-visas/; A. Nicole Kreisberg, H–1B 

Visas: No Impact on Wages, American Institute for 

Economic Research (Sept. 2014), https://

www.aier.org/research/h-1b-visas-no-impact-onwages/; Jonathan Rothwell and Neil G. Ruiz, H–1B 

Visas and the STEM Shortage, The Brookings 

Institution (May 10, 2013), https://

www.brookings.edu/research/h-1b-visas-and-thestem-shortage/; Neil G. Ruiz et al., The Search for 

Skills: Demand for H–1B Immigrant Workers in U.S. 

Metropolitan Areas, The Brookings Institution (July 

18, 2012), https://www.brookings.edu/research/thesearch-for-skills-demand-for-h-1b-immigrantworkers-in-u-s-metropolitan-areas/; Madeline 

Zavodny, The H–1B Program and Its Effects on 

Information Technology Workers, Federal Reserve 

Bank of Atlanta (Sept. 2003), https://

www.frbatlanta.org/research/publications/ 

economic-review/2003/q3/vol88no3_H-1B-programand-effects-on-information-technologyworkers.aspx. 

the fact that more than a third of recent 

American graduates with STEM degrees 

do not obtain work in a STEM field 

indicates that there is no shortage of 

qualified recent American graduates to 

fill STEM jobs.99

Finally, concerning the comment that 

H–1B workers are more costly than U.S. 

workers, DHS recognizes that employers 

often incur upfront costs to file H–1B 

petitions (including filing fees and 

preparation fees). However, DHS 

believes these upfront costs are offset by 

the employer’s ability to legally pay 

their H–1B employees relatively low 

wages below the local median wage. 

Data show that the majority of H–1B 

cap-subject petitions have been filed for 

positions certified at the level I or level 

II prevailing wages, both of which are 

set below the local median wage.100

Employers may realize additional cost 

savings over the span of several years as 

they continue to employ these H–1B 

workers at below-median wages without 

any statutory requirement to increase 

the workers’ wage levels or wages 

beyond the minimum required wages. 

Unlike U.S. workers, H–1B workers are 

tied to their specific employer, and, 

therefore, may lack the negotiating 

power of similarly skilled U.S. workers 

to request wage increases.101 DHS 

believes that the random selection 

process is not fair to U.S. workers whose 

wages may be adversely impacted by 

relatively lower-paid H–1B workers. 

c. Lack of Evidence To Support 

Rulemaking 

Comments: An advocacy group stated 

that the evidence provided in the NPRM 

is not robust enough to justify such a 

dramatic change in policy. According to 

the commenter, the agency failed to 

consider multiple sources that suggest 

the current H–1B program benefits U.S. 

workers and the economy. Similarly, a 

trade association said that the Agency 

‘‘selectively cherrypicked a small 

minority of studies’’ from sources that 

regularly object to the use of temporary 

highly-skilled foreign talent, asserting 

that, had USCIS completed a more 

comprehensive review of literature, it 

would have been clear that the H–1B 

visa program and workers make 

significant contributions to the U.S. 

economy and society. 

A joint submission from multiple 

organizations said that DHS even 

communicates its failure to gather 

sufficient evidence before publication, 

and that DHS appears to be operating 

under the misconception that anything 

can be published as an NPRM and the 

burden shifts to the public to analyze 

the potential impacts. The commenters 

said that DHS should gather more data 

before restarting the regulatory process. 

An individual commenter similarly said 

that the agency provides inadequate 

justifications for the proposed changes, 

while another individual commenter 

said that the proposed rule is ‘‘halfbaked and flawed in a number of ways’’ 

and requires proper rule-making 

procedures. An individual commenter 

stated that the proposed rule does not 

explain how giving priority to higher 

wage levels is a more efficient allocation 

process than the current random lottery 

process. The commenter said the H–1B 

lottery is a fair solution to the issue of 

many petitions arriving on the same day 

or time, and the proposed rule would 

‘‘go beyond the principle of fairness.’’ 

A trade association stated that the 

APA does not allow an agency to make 

significant change without completing 

an accurate cost-benefit analysis, which 

the agency did not do, nor did it allow 

sufficient time for stakeholders to 

conduct their own assessments. A 

company similarly stated that the 

Department’s ‘‘scant justification’’ for 

wage-based selection of H–1B petitions 

violates the APA because a Level I or II 

prevailing wage does not mean that that 

the worker is not highly skilled or vital. 

The company said that the Department’s 

reasoning for the proposed rule lacks a 

‘‘rational connection between the facts 

found and the choice made.’’ An 

anonymous commenter wrote that the 

proposal is arbitrary and capricious, 

asserting that DHS does not explain the 

rationale behind making wages the sole 

indicator of a worker’s eligibility for 

visa sponsorship. 

Response: DHS disagrees with these 

comments. DHS conducted a 

comprehensive review of the issues, 

relying on both internal data and 

external studies and reports.102 DHS 

acknowledges the articles, studies, and 

reports submitted by commenters that 

purport to show the overall benefits of 

H–1B workers.103 DHS recognizes that 

some H–1B workers do fill gaps in the 

labor market and make contributions to 

the overall economy. However, while 

some studies show the benefits of H–1B 

workers overall, DHS also believes that 

sufficient evidence demonstrates that a 

prevalence of relatively lower-paid and 

lower-skilled H–1B workers is 


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104See The National Academies of Sciences, 

Engineering, and Medicine, The Economic and 

Fiscal Consequences of Immigration 258 

(Washington, DC: The National Academies Press 

2017), https://doi.org/10.17226/23550 (noting that 

differing results across certain studies ‘‘may reflect 

immigrant heterogeneity generally and among H–1B 

workers in particular’’). 105See new 8 CFR 214.2(h)(8)(iii)(D)(1)(ii). 

detrimental to U.S. workers.104 As 

discussed in the NPRM and above, DHS 

further believes that the influx of 

relatively lower-skilled and lower-paid 

H–1B workers is not consistent with the 

dominant legislative purpose of the 

statute. Prioritizing registrations based 

on wage level likely would increase the 

average and median wage levels of 

H–1B beneficiaries who would be 

selected for further processing under the 

H–1B allocations. Moreover, it would 

maximize H–1B cap allocations, so that 

they more likely would go to the best 

and brightest workers. 

Based on its comprehensive review of 

the submitted comments and available 

evidence, DHS has concluded that, by 

changing the selection process, in these 

years of excess demand, from a random 

lottery selection to selection generally 

based on the highest OES prevailing 

wage level that the proffered wage 

equals or exceeds, DHS will implement 

the statute more faithfully to its 

dominant legislative purpose. DHS 

further believes that this will benefit the 

economy and increase the United States’ 

competitive edge in attracting the best 

and the brightest in the global labor 

market, consistent with the goals of the 

H–1B program. It may also benefit U.S. 

workers as employers that might have 

petitioned for a cap-subject H–1B 

worker to fill relatively lower-paid, 

lower-skilled positions, may be 

incentivized to hire available and 

qualified U.S. workers for those 

positions. DHS believes that the 

available data and information support 

this rulemaking and that it is not 

necessary to gather more data or to 

restart the regulatory process. 

C. Proposed Changes to the Registration 

Process for H–1B Cap-Subject Petitions 

1. Proposed Wage-Based Selection 

(Selection Process for Regular Cap and 

Advanced Degree Exemption, 

Preservation of Random Selection 

Within a Prevailing Wage) 

Comment: A business association 

commented that adding in a nonrandom variable to the H–1B cap 

selection process would open the door 

to pre-adjudication, which may add new 

burdens to the petitioners and USCIS. 

The commenter also said the addition of 

the wage factor may cause potential 

enforcement or audit actions if USCIS 

does not agree with a petitioner’s 

assessment of ‘‘corresponding wage 

level,’’ either when adjudicating the 

petition or in the course of a postadjudication audit. In addition, the 

commenter said the ‘‘corresponding 

wage level’’ listed on the lottery 

registration would not necessarily 

match the ‘‘wage level’’ designated on 

the Labor Condition Application (LCA) 

form, creating confusion. 

Response: DHS disagrees that ranking 

according to the highest OES prevailing 

wage level that the proffered wage 

equals or exceeds will be a preadjudication, as submission of the 

electronic registration is merely an 

antecedent procedural requirement to 

properly file the petition. It is not 

intended to replace the petition 

adjudication process or assess 

substantive eligibility. With respect to 

new burdens resulting from the 

additional information provided, these 

are captured below in section V. 

Statutory and Regulatory Requirements. 

DHS believes that the additional 

burden, which is relatively small, is 

necessary to ensure that USCIS 

implements the registration system in a 

manner that realistically, effectively, 

efficiently, and more faithfully 

administers the cap selection process. 

DHS acknowledges that the ‘‘wage 

level’’ listed by the petitioner on the 

registration form may not always match 

the ‘‘wage level’’ indicated on the LCA. 

However, DHS believes that the 

instructions provided in the registration 

system and on the H–1B petition are 

sufficiently clear to avoid confusion. 

Further, USCIS officers will be 

sufficiently trained on the reasons why 

the wage level on the registration form 

may not always match the LCA, and 

may request additional evidence from 

the petitioner, as appropriate, to resolve 

material discrepancies in this regard. 

However, DHS notes that USCIS may 

deny or revoke a petition if USCIS 

determines that the statement of facts 

contained on the registration form is 

inaccurate, fraudulent, misrepresents 

any material fact, or is not true and 

correct.105

Comment: A professional association 

noted that DHS proposes to abruptly 

and unnecessarily change the selection 

process for H–1B cap-subject petitions 

by prioritizing registrants based on the 

highest OES prevailing wage level, and 

consider applicants solely based on the 

amount of money that they would be 

paid, rather than the utility that they 

would bring to the U.S. workforce. 

Response: DHS believes that ranking 

and selecting by the highest OES 

prevailing wage level that the proffered 

wage equals or exceeds is a practical 

way to achieve 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. As stated previously, the 

new ranking system takes into account 

the wage level relative to the SOC code 

and area(s) of intended employment—as 

opposed to salary alone—when ranking 

registrations. While DHS agrees that the 

utility an H–1B beneficiary brings to the 

U.S. workforce is important, there is no 

practical, objective way to measure 

utility such that DHS could use this 

quality to rank and select H–1B 

registrations or petitions. 

2. Required Information From 

Petitioners 

a. OES Wage Level 

i. Highest OES Wage Level That the 

Proffered Wage Would Equal or Exceed 

Comments: Several commenters said 

DHS should rank registrations at OES 

prevailing wage level I separate from 

those falling below OES prevailing wage 

level I, so that registrations who meet 

wage level I are prioritized for H–1B 

selection over those falling below level 

I. Some commenters noted that the DOL 

IFR placed the level I wage at the 45th 

percentile (close to previous level III), 

creating vast differentiation within this 

large group. Therefore, the benefits of 

the rule of differentiating candidates 

would fail for at least 90 percent of 

registrations, as the DOL IFR would 

result in the prevailing wage level I and 

below group being much larger and DHS 

needing to select from that group 

completely at random. With that lack of 

differentiation, the new rule would not 

accomplish its purpose of retaining the 

best talent. Therefore, these commenters 

urged DHS to consider separating those 

registrations at or above level I wages 

from those falling below, as opposed to 

putting them into one giant group. 

Response: DHS does not agree with 

the suggestions to separate OES wage 

level I from a wage below level I. DHS 

expects that all petitioners offering a 

wage lower than the OES wage level I 

wage will be using another legitimate 

source other than OES or an 

independent authoritative source, 

including a private wage survey. 

Therefore, such a change effectively 

could preclude petitioners that utilize 

one of those other sources from being 

selected for registration. By grouping 

OES wage level I and below together, 

those petitioners have a fair chance of 

selection and are not precluded from 

using a private wage survey as 

appropriate. Since the DOL IFR was set 


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106On December 1, 2020, the U.S. District Court 

for the Northern District of California issued an 

order in Chamber of Commerce, et al. v. DHS, et 

al., No. 20–cv–7331, setting aside the DOL IFR, 85 

FR 63872. Similarly, on December 3, 2020, the U.S. 

District Court for the District of New Jersey issued 

a preliminary injunction in ITServe Alliance, Inc., 

et al. v. Scalia, et al., No. 20–cv–14604, applying 

to the plaintiffs in that case. Also, on December 3, 

2020, DOL announced that it would no longer 

implement the IFR, consistent with the above 

referenced court orders. 

107See U.S. Department of Labor, Bureau of Labor 

Statistics, Occupational Employment Statistics, 

https://www.bls.gov/oes/home.htm (last visited Dec. 

14, 2020). 

108See U.S. Department of Labor, Employment 

and Training Administration, Prevailing Wages 

(PERM, H–2B, H–1B, H–1B1, and E–3), https://

www.dol.gov/agencies/eta/foreign-labor/wages/ 

prevailing-wage (last visited Dec. 14, 2020). 

aside on December 1, 2020, and is no 

longer being implemented, DHS will not 

be considering the impact of the DOL 

IFR in the context of this final rule.106

Comments: A professional association 

remarked that petitioners who use 

private survey data would be 

disadvantaged by the proposed rule and 

said that, even when private wage 

surveys provide an accurate prevailing 

wage, the proposed rule requires the 

employer to ‘‘downgrade’’ the H–1B 

registration to the lower OES prevailing 

wage level. The commenter concluded 

that, as a result, the proposed rule’s 

artificial preference in the registration 

system to what is admittedly incomplete 

or possibly inaccurate OES wage data 

reduces the chance that employers 

intending to pay the H–1B required 

wage based on the statutory ‘‘best 

information available’’—in this case a 

private industry survey—will see their 

registration selection chances materially 

reduced. A law firm questioned which 

factors contributed to DHS’s decision to 

use the OES wage levels as opposed to 

wage leveling from a permissible private 

wage survey. 

Response: DHS appreciates the 

commenter’s question. When 

determining how to rank and select 

registrations (or petitions) by wage level, 

DHS decided to use OES prevailing 

wage levels because they are the most 

comprehensive and objective source for 

comparing wages. The OES program 

produces employment and wage 

estimates annually for nearly 800 

occupations.107 Additionally, most 

petitioners are familiar with the OES 

wage levels since they are used by DOL 

and have been used in the foreign labor 

certification process since 1998.108 OES 

wage level data is publicly available 

through the Foreign Labor Certification 

Data Center’s Online Wage Library. 

Private wage surveys are not publicly 

available and do not always have four 

wage levels. 

DHS disagrees with the commenter’s 

assertion that petitioners who use 

private survey data would be 

disadvantaged by the rule. Petitioners 

may continue to use private wage 

surveys, if they choose to do so, to 

establish that they will be paying the 

beneficiary a required wage. This rule, 

however, will rank and select 

registrations or petitions, as applicable, 

based on the highest OES wage level 

that the proffered wage equals or 

exceeds as OES wage data is the most 

comprehensive and objective source for 

comparing wages. 

Comment: An individual commenter 

stated that the requirement to designate 

the wage level is confusing because DHS 

is asking petitioners to designate not the 

wage level associated with the job 

opportunity, but the highest OES wage 

level for which the proffered wage 

exceeds the OES wage. The commenter 

said asking petitioners to determine two 

different wage levels makes the process 

deliberately complex and ripe for error, 

which could be fatal given the proposed 

increased authority of USCIS to deny 

petitions for discrepancies in wage 

levels. The commenter also expressed 

concern that the position, its substantive 

job duties, its occupational 

classification, the intended worksite, the 

prevailing wage, and the actual wage are 

now required at the registration stage in 

order to comply with the ‘‘complicated 

ranking-wage-level calculation.’’ 

Response: DHS does not agree with 

the comment stating that asking 

petitioners to specify the highest 

corresponding OES wage level that the 

proffered wage would equal or exceed 

on the registration is confusing or 

burdensome. Further, DHS disagrees 

with the comment stating that the 

position, its substantive job duties, its 

occupational classification, the intended 

worksite, the prevailing wage, and the 

actual wage are now required at the 

registration stage. In addition to the 

information required on the current 

electronic registration form (and on the 

H–1B petition) and for purposes of this 

selection process and to establish the 

ranking order, a registrant (or a 

petitioner if registration is suspended) 

would be required to provide only the 

highest OES wage level that the 

proffered wage equals or exceeds for the 

relevant SOC code in the area of 

intended employment. While the OES 

wage level assessment would be based 

on the SOC code, area of intended 

employment, and proffered wage, the 

registrant would not need to supply the 

SOC code, area of intended 

employment, and proffered wage at the 

registration stage. 

Comment: A professional association 

asserted that the U.S. Bureau of Labor 

Statistics’ (BLS) OES wage survey skews 

wage data higher for several professions, 

including physician specialties. The 

commenter suggested that wage survey 

data collected from employees has 

significant issues, including that the 

data is collected voluntarily, wage data 

is grouped rather than provided for 

individual employees, larger urban 

centers are overrepresented compared to 

smaller practices, and physicians in 

rural areas are underreported. The 

association added that, in situations 

where there is less wage data, DHS will 

be unable to accurately adjudicate cap 

slots, citing data from the American 

Immigration Council and the Foreign 

Labor Certification Data Center. The 

association also said the DOL IFR 

increases the prevailing wage 

requirements and exacerbates the issue 

by establishing a default wage for 

physicians of $208,000 where data is 

unavailable. The professional 

association stated that the BLS 

prevailing wage does not comply with 

DHS’s claim that higher skill level 

positions must be paid higher wages. 

The association asserted that statistical 

analysis problems with the BLS OES 

survey would cause the population of 

H–1B physicians to be paid equally 

regardless of skill or experience. The 

commenter further stated that rural and 

other underserved areas will not meet 

the wage requirements and will lose 

access to critically needed physicians. 

Response: On December 1, 2020, the 

U.S. District Court for the Northern 

District of California issued an order in 

Chamber of Commerce, et al. v. DHS, et 

al., No. 20–cv–7331, setting aside the 

DOL IFR, which took effect on October 

8, 2020, and implemented reforms to the 

prevailing wage methodology for the 

Permanent Employment Certification, 

H–1B, H–1B1, and E–3 visa programs. 

Similarly, on December 3, 2020, the U.S. 

District Court for the District of New 

Jersey issued a preliminary injunction 

in ITServe Alliance, Inc., et al. v. Scalia, 

et al., No. 20–cv–14604, applying to the 

plaintiffs in that case. On December 3, 

2020, DOL announced that it was taking 

necessary steps to comply with the 

courts’ orders and will no longer 

implement the IFR. These steps include 

making required technical changes to 

the Foreign Labor Application Gateway 

(FLAG) system to replace the October 8, 

2020, through June 30, 2021, wage 

source year data that was implemented 

under the DOL IFR with the OES 

prevailing wage data that was in effect 

on October 7, 2020, and reflecting such 

data updates in the Foreign Labor 


tkelley on DSKBCP9HB2PROD with RULES3
1704 Federal Register / Vol. 86, No. 5 / Friday, January 8, 2021 / Rules and Regulations 

109The Foreign Labor Certification Data Center, a 

component of the U.S. Department of Labor Office 

of Foreign Labor Certification, is the location of the 

Online Wage Library for prevailing wage 

determinations. U.S. Department of Labor, Foreign 

Labor Certification Data Center, Online Wage 

Library, https://www.flcdatacenter.com/ (last 

visited Dec. 15, 2020). 

110 DOL, Employment and Training 

Administration, Foreign Labor Certification, 

Announcements https://www.dol.gov/agencies/eta/ 

foreign-labor (last visited Dec. 21, 2020). 

111U.S. Department of Labor, Employment and 

Training Administration, Prevailing Wage 

Determination Policy Guidance, Nonagricultural 

Immigration Programs (Revised Nov. 2009), https:// 

www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/ 

NPWHC_Guidance_Revised_11_2009.pdf. 

112For example, in Computer and Mathematical 

Occupations, the 2019 national median salary for 

level I was $78,000; for level II was $90,000; for 

level III was $115,000; and for level IV was 

$136,000. Department of Homeland Security, 

USCIS, Office of Performance and Quality, SAS 

PME C3 Consolidated, VIBE, DOL OFLC TLC 

Disclosure Data queried 9/2020 TRK 6446. 

113See new 8 CFR 214.2(h)(8)(iii)(D)(1)(ii). 

114See 8 CFR 214.2(h)(11)(iii)(A)(2). 

Certification Data Center Online Wage 

Library 109 at https://

www.flcdatacenter.com/ with the 

correct prevailing wage data for each 

SOC and area of intended employment 

through June 30, 2021.110

While prevailing wage level data 

remains unavailable for some SOC 

codes in some areas of intended 

employment, DHS believes that its 

solution in that limited circumstance, as 

proposed in the NPRM and retained in 

this final rule, still will allow DHS to 

select registrations according to the 

metric of the registrant’s self-identified 

prevailing wage level as calculated 

using DOL’s prevailing wage level 

guidance.111 DHS recognizes that this 

solution is imperfect as it does not 

provide a means for those registrants to 

proffer wages that equal or exceed 

higher prevailing wage levels than those 

commensurate with the position 

requirements. However, DHS concludes 

that it is the best available option to 

serve the overarching goal of revising 

the selection process to ensure that 

H–1B petitions are filed for positions 

requiring relatively higher skill levels or 

proffering wages commensurate with 

higher skill levels. The commenter’s 

statements that limitations in OES data 

would cause the population of H–1B 

physicians to be paid equally regardless 

of skill or experience, or that such 

limitations undermine the premise that 

higher skill level positions must be paid 

higher wages, is beyond the scope of 

this rulemaking. This rule does not 

require an employer to pay a certain 

wage. This rule merely pertains to 

ranking and selection of registrations or 

petitions, as applicable, based on 

corresponding wage level. In the limited 

instance where OES data is unavailable, 

the registrant would follow DOL 

guidance on prevailing wage 

determinations to determine which OES 

wage level to select on the registration, 

notwithstanding the proffered salary. 

ii. Highest OES Wage Level When There 

Is No Current OES Prevailing Wage 

Information 

Comment: A business association 

commented that, although using the 

prevailing wage worksheet to determine 

wage level makes sense, there is no way 

to escalate to a higher corresponding 

wage level by paying more, unlike when 

an OES wage is used. The commenter 

added that the unavailability of an OES 

wage may be an indication that a job is 

new or novel, and therefore may be even 

more in need of H–1B workers to fulfill 

employment needs. 

Response: DHS recognizes that some 

occupations do not have current OES 

prevailing wage information available 

on DOL’s Online Wage Library. In the 

limited instance where there is no 

current OES prevailing wage 

information for the proffered position, 

the registrant would follow DOL 

guidance on prevailing wage 

determinations to determine which OES 

wage level to select on the registration. 

While petitioners may not be able to 

increase their chance of selection by 

increasing the proffered wage, they can 

increase their chance of selection by 

petitioning for positions requiring 

higher skill, experience, or education 

levels. 

DHS believes that, in the absence of 

current OES prevailing wage 

information, selecting according to wage 

level is the best way to ensure that 

registrations (or petitions) are selected 

consistent with the primary purpose of 

the H–1B program, which is to help U.S. 

employers fill labor shortages in 

positions requiring highly skilled or 

highly educated workers. DHS data 

shows a correlation between higher 

salaries and higher wage levels.112 Thus, 

even in those limited instances where 

no OES prevailing wage information is 

available, DHS believes that selecting 

according to wage level is likely to 

result in selection of the highest-paid or 

highest-skilled beneficiaries, consistent 

with the goals of the H–1B program. 

DHS will not comment on whether the 

unavailability of OES wage indicates 

that a job is new, novel, or in more 

demand, as that is outside the scope of 

this rule. 

Comment: One commenter asked, 

where the OES wage levels are missing, 

what penalties, if any, will be applied 

to petitioners or beneficiaries if USCIS 

disagrees with the wage level selected 

by the petitioner after selection has 

occurred. 

Response: DHS expects each 

registrant would be able to identify the 

appropriate SOC code for the proffered 

position because all petitioners are 

required to identify the appropriate SOC 

code for the proffered position on the 

LCA, even when there is no applicable 

wage level on the LCA. Using the SOC 

code and established DOL guidance, all 

prospective petitioners would be able to 

determine the appropriate OES wage 

level for purposes of completing the 

registration or petition, as applicable, 

regardless of whether they were to 

specify an OES wage level or utilize the 

OES program as the prevailing wage 

source on an LCA. 

During the adjudication process, if 

USCIS disagrees with the wage level 

selected by the petitioner, USCIS will 

comply with 8 CFR 103.2(b)(8) and may 

provide the petitioner an opportunity to 

explain the selected wage level, as 

applicable. If USCIS determines that the 

petitioner failed to meet its burden of 

proof in establishing that it selected the 

appropriate SOC code for the position, 

or if USCIS determines that the petition 

was not based on a valid registration 

(e.g., if there is a discrepancy in wage 

levels between the registration and the 

petition), USCIS may deny the petition. 

If USCIS determines that the statement 

of facts contained on the registration 

form is inaccurate, fraudulent, 

misrepresents any material fact, or is not 

true and correct, USCIS may reject or 

deny the petition or, if approved, may 

revoke the approval of a petition that 

was filed based on that registration.113

If USCIS determines that the statement 

of facts contained in the petition or on 

the LCA was not true and correct, 

inaccurate, fraudulent, or 

misrepresented a material fact, USCIS 

may revoke the approval of that 

petition.114

Comment: A professional association 

stated that, because the registration 

system does not contemplate a real-time 

adjudication of whether occupations 

lacking current OES prevailing wage 

information are correctly slotted under 

USCIS’ selection system, there would be 

no fail-safe mechanism for employers to 

confirm that the wage-preference 

selection process in fact operated as 

USCIS predicted in the proposed rule. 

The commenter stated that, before any 

further rule is published, DHS, DOL and 

OMB should investigate and determine 

whether any proposed wage-preference 

H–1B selection process relying upon 


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115See Kirk Doran et al., The Effects of HighSkilled Immigration Policy on Firms: Evidence from 

Visa Lotteries, University of Notre Dame (Feb. 

2016), https://gspp.berkeley.edu/assets/uploads/ 

research/pdf/h1b.pdf (noting that ‘‘additional H– 

1Bs lead to lower average employee earnings and 

higher firm profits’’ and the authors’ ‘‘results are 

more supportive of the narrative about the effects 

of H–1Bs on firms in which H–1Bs crowd out 

alternative workers, are paid less than the 

alternative workers whom they crowd out, and thus 

increase the firm’s profits despite no measurable 

effect on innovation’’); John Bound et al., 

Understanding the Economic Impact of the H–1B 

Program on the U.S., Working Paper 23153, 

National Bureau of Economic Research (Feb. 2017), 

http://www.nber.org/papers/w23153 (‘‘In the 

absence of immigration, wages for US computer 

scientists would have been 2.6% to 5.1% higher 

and employment in computer science for US 

workers would have been 6.1% to 10.8% higher in 

2001.’’). 

116U.S. Department of Labor, Foreign Labor 

Certification Data Center, Online Wage Library, 

https://www.flcdatacenter.com/ 

OesQuickResults.aspx?code=17- 

2051&area=41860&year=21&source=1 (last visited 

Dec. 21, 2020) (providing prevailing wage level 

values for SOC code 17–2051 in San FranciscoOakland-Hayward, CA, in the All Industries 

database for 7/2020–6/2021). 

117U.S. Department of Labor, Foreign Labor 

Certification Data Center, Online Wage Library, 

https://www.flcdatacenter.com/ 

OesQuickResults.aspx?code=17- 

2051&area=33860&year=21&source=1 (last visited 

Dec. 21, 2020) (providing prevailing wage level 

values for SOC code 17–2051 in Montgomery, AL, 

in the All Industries database for 7/2020–6/2021). 

118U.S. Department of Labor, Foreign Labor 

Certification Data Center, Online Wage Library, 

https://www.flcdatacenter.com/ 

OesQuickResults.aspx?code=17- 

2051&area=33860&year=21&source=1 (last visited 

Dec. 21, 2020) (showing that a level II wage = 

$74,901). 

119See new 8 CFR 214.2(h)(10)(ii). 

120See new 8 CFR 214.2(h)(10)(ii). 

121 85 FR 69236, 69263. 

incomplete OES data can be established, 

notwithstanding these apparent data 

gaps and deficiencies. The commenter 

concluded that, despite the inadequacy 

or unavailability of OES data, the 

proposed rule ignores the requirement 

that wage data be sourced from ‘‘the best 

information available,’’ placing 

unwarranted and artificial reliance on 

OES data despite its faults or lack of 

availability. 

Response: DHS recognizes that 

prevailing wage level data remains 

unavailable for some SOC codes in some 

areas of intended employment. 

However, DHS still believes that OES 

provides the most comprehensive and 

objective publicly available source for 

obtaining prevailing wage information 

and, thus, is still the best available 

option to serve the overarching 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.115

iii. Lowest OES Wage Level That the 

Proffered Wage Would Equal or Exceed 

When Beneficiary Would Work in 

Multiple Locations or Positions 

Comment: A commenter said 

employers may relocate an employee to 

temporarily work remotely in a location 

where average salary is low to keep 

wages low while increasing the H–1B 

wage level and the chance of being 

selected. The commenter suggested that 

the area code used for the selection of 

H–1B registrations only should be the 

registered official address of the 

company, instead of anywhere where 

the employee will work, concluding that 

employers should be fined for 

misrepresenting work locations to take 

advantage of lower wages. 

Response: DHS appreciates this 

commenter’s concern, but believes the 

commenter misunderstood how the new 

H–1B cap selection process will work 

and the limitations contained in the 

proposed rule to limit the potential for 

abuse or gaming of the selection 

process. If the H–1B beneficiary will 

work in multiple locations or multiple 

positions, the registrant or petitioner 

must specify on the registration or 

petition, as applicable, the lowest 

corresponding OES wage level that the 

proffered wage will equal or exceed for 

the relevant SOC code in the area of 

intended employment, and USCIS will 

rank and select based on the lowest 

corresponding OES wage level. 

DHS provides the following example 

for illustrative purposes only. A 

prospective employer intends to employ 

an H–1B beneficiary as a level I ‘‘Civil 

Engineer’’ position (SOC code 17–2051) 

at two locations: San Francisco, 

California and Montgomery, Alabama. 

The Alabama location was specifically 

chosen because of that locality’s 

generally lower prevailing wages. The 

required level I prevailing wage for each 

area of intended employment is $77,147 

per year 116 and $62,858 per year,117

respectively. In this scenario, to meet 

the level I prevailing wage for the San 

Francisco area of intended employment, 

the minimum annual wage the 

prospective petitioner must offer to the 

beneficiary is $77,147. While an annual 

salary of $77,147 would exceed the level 

II prevailing wage for the Montgomery, 

Alabama, area of intended 

employment,118 the prospective 

petitioner still must select Level I for 

purposes of the registration because that 

is the lowest corresponding OES wage 

level that the proffered wage will equal 

or exceed for the relevant SOC code in 

all areas of intended employment. This 

rule also includes provisions 

authorizing USCIS to deny an H–1B 

petition if USCIS determines that the 

statements on the registration or petition 

were inaccurate, fraudulent or 

misrepresented a material fact.119 USCIS 

also may deny 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 increase the odds of 

selection during the registration or 

petition selection process, as applicable, 

such as by reducing the proffered wage 

to an amount that would be equivalent 

to a lower wage level than that indicated 

on the original petition.120

Comment: A professional association 

expressed concern with the proposed 

rule’s language stating, ‘‘if the 

beneficiary will work in multiple 

locations, or in multiple positions if the 

registrant is an agent, USCIS will rank 

and select the registration for the lowest 

corresponding OES wage level that the 

proffered wage will equal or exceed.’’ 121

The commenter stated that, basing the 

chance for selection on the lower wage 

figure is an ‘‘arbitrary’’ protocol without 

explanation. Likewise, an individual 

commenter said the provision is 

unfairly discriminatory and lacks 

adequate justification, adding that it is 

‘‘unconscionable to use an inverted 

system’’ for ranking. 

Response: DHS chose to use the 

lowest corresponding OES wage level 

that the proffered wage will equal or 

exceed in the case of multiple locations 

or multiple positions to prevent gaming 

of the registration process. If DHS were 

to invert the process and rank based on 

the highest corresponding OES wage 

level that the proffered wage were to 

equal or exceed, then petitioners could 

place the beneficiary in a lower-paying 

position for most of the time and a 

higher-paying position for only a small 

percent of the time, but use that higherpaying position to rank higher in the 

selection process and increase their 

chances of being selected in the 

registration process. Similarly, in the 

case of multiple locations, petitioners 

could place the beneficiary in a higherpaying locality for only a small percent 

of time, but use that higher-paying 

locality to rank higher in the selection 

process and increase their chances of 

being selected in the registration 

process. 

iv. Other Comments on OES Wage Level 

Comment: Several commenters said 

that the proposed rule’s changes to 

prevailing wage levels are in direct 

opposition to established guidance set 

forth in the DOL Employment and 


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122U.S. Department of Labor, Employment and 

Training Administration, Prevailing Wage 

Determination Policy Guidance, Nonagricultural 

Immigration Programs (Revised Nov. 2009), https:// 

www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/ 

NPWHC_Guidance_Revised_11_2009.pdf. 

123 85 FR 69236, 69237. 

124U.S. Department of Labor, U.S. Bureau of 

Labor Statistics, Occupational Employment 

Statistics, https://www.bls.gov/oes/home.htm (last 

visited on Dec. 11, 2020). 

125U.S. Department of Labor, Employment and 

Training Administration, Prevailing Wages (PERM, 

H–2B, H–1B, H–1B1, and E–3), https://www.dol.gov/ 

agencies/eta/foreign-labor/wages/prevailing-wage 

(last visited Dec. 11, 2020). 

126See new 8 CFR 214.2(h)(8)(iii)(D)(1)(i). 

127See new 8 CFR 214.2(h)(8)(iii)(D)(1)(ii). 

128See new 8 CFR 214.2(h)(11)(iii)(A)(2). 

Training Administration Prevailing 

Wage Determination Policy 

Guidance.122

Response: This rule does not conflict 

with or change established DOL 

guidance. DHS clearly stated in the 

NPRM that this ranking and selection 

process will not alter the prevailing 

wage levels associated with a given 

position for DOL purposes, which are 

informed by a comparison of the 

requirements for the proffered position 

to the normal requirements for the 

occupational classification.123

Comment: A professional association 

wrote that the OES wage data has 

various shortcomings, and there are 

advantages to using a variety of wage 

data. Prevailing wage data can originate 

from multiple sources, including wage 

surveys published by private 

organizations and employer-conducted 

surveys. The association said that BLS 

OES survey data used to calculate 

prevailing wages is not designed for 

foreign labor certification, and OES 

survey data captures no information 

about differences based on skills, 

training, experience or responsibility 

levels of the workers, all of which are 

factors the INA requires DHS to 

consider. The association said that the 

OES survey is the best available source 

of wage data for the Department’s 

purposes, but it is not perfectly suited 

to the H–1B, H–1B1, and E–3 

classifications, nor to the Permanent 

Labor Certification Program (PERM). 

The professional association also 

commented that the proposed rule does 

not describe the cases when OES 

prevailing wage data would be 

unavailable or how USCIS officials 

would be trained to interpret DOL 

guidance, and petitioners who cannot 

use Online Wage Library data would 

have no way to know whether USCIS 

officials misinterpreted the DOL 

guidance and mistakenly disagreed with 

an employer’s wage level selection. 

Response: When determining how to 

rank and select registrations (or 

petitions, as applicable) by the highest 

OES prevailing wage level that the 

proffered wage equals or exceeds, DHS 

decided to use OES prevailing wage 

levels because OES is the most 

comprehensive and objective source for 

comparing wages. The OES program 

produces employment and wage 

estimates annually for nearly 800 

occupations.124 Additionally, most 

petitioners are familiar with the OES 

wage levels since they are used by DOL 

and have been used in the foreign labor 

certification process since 1998.125

During the adjudication process, if 

USCIS disagrees with the wage level 

selected by the petitioner, USCIS will 

comply with 8 CFR 103.2(b)(8) and may 

provide the petitioner an opportunity to 

explain the wage level, as applicable. If 

USCIS determines that the petitioner 

failed to meet its burden of proof in 

establishing that it selected the 

appropriate SOC code for the position, 

or if USCIS determines that the petition 

was not based on a valid registration 

(e.g., if there is a discrepancy in wage 

levels between the registration and the 

petition), USCIS may deny the 

petition.126 If USCIS determines that the 

statement of facts contained on the 

registration form is inaccurate, 

fraudulent, misrepresents any material 

fact, or is not true and correct, USCIS 

may reject or deny the petition or, if 

approved, may revoke the approval of a 

petition that was filed based on that 

registration.127 If USCIS determines that 

the statement of facts contained in the 

petition or on the LCA was not true and 

correct, inaccurate, fraudulent, or 

misrepresented a material fact, USCIS 

may revoke the approval of that 

petition.128

b. Attestation to the Veracity of the 

Contents of the Registration and Petition 

(Including Comments on Rejections, 

Denials, and Revocations) 

Comments: One commenter noted the 

need to ensure that ranking and 

selection as described would not enable 

attempts to increase the chance of 

selection by representing one wage level 

at the registration stage and a lower 

wage level at the H–1B petition filing 

stage. 

Response: DHS appreciates and shares 

the commenter’s concern. New 8 CFR 

214.2(h)(8)(iii)(D)(1)(iii), (h)(10)(ii), and 

(h)(11)(iii)(A)(2) address the concern 

that registrants could misrepresent wage 

levels at the registration stage to 

increase chances of selection. 

Specifically, this final rule empowers 

USCIS to deny a petition if USCIS 

determines that the statements on the 

registration or petition were inaccurate, 

fraudulent, or misrepresented a material 

fact. The rule also authorizes USCIS to 

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. The ability to deny or revoke 

approval of an H–1B petition in such a 

context will defend against registrants 

and petitioners attempting to abuse the 

H–1B cap selection process by 

misrepresenting wage levels. 

Comment: One commenter asked 

what factors DHS will use to determine 

if a petitioner attempted to circumvent 

the proposed rule by filing a subsequent 

new petition with a lower wage under 

a related entity, and whether DHS will 

consider that related entities may have 

different compensation ranges for 

similar positions in making this 

determination. 

Response: DHS thanks this 

commenter for the question. Under new 

8 CFR 214.2(h)(10)(ii), USCIS may deny 

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 

increase the odds of selection during the 

registration or petition selection 

process, as applicable, such as by 

reducing the proffered wage to an 

amount that would be equivalent to a 

lower wage level than that indicated on 

the original petition. Whether the new 

or amended petition is part of the 

petitioner’s attempt to unfairly increase 

the odds of selection during the 

registration or petition selection process 

is an issue of fact that USCIS will 

determine based on the totality of the 

record. As such, DHS cannot provide an 

exclusive list of factors that USCIS will 

consider in such adjudications. In 

general, however, the petitioner or a 

related entity bears the burden of proof 

to demonstrate that: the new or 

amended petition is not part of the 

petitioner’s attempt to unfairly increase 

the odds of selection during the 

registration or petition selection 

process; the initial H–1B petition and 

the underlying registration, when 

applicable, was based on a legitimate 


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129See new 8 CFR 214.2(h)(10)(ii) (‘‘A valid 

registration must represent a legitimate job offer.’’); 

U.S. Department of Homeland Security, U.S. 

Citizenship and Immigration Services, Policy 

Memorandum PM–602–0114, Rescission of Policy 

Memoranda (June 17, 2020), https://www.uscis.gov/ 

sites/default/files/document/memos/PM-602-0114_

ITServeMemo.pdf (‘‘A bona fide job offer must exist 

at the time of filing [the H–1B petition].’’). 

130See 8 CFR 214.2(h)(2)(i)(H). 

131 85 FR 69236, 69242. 

132See 8 CFR 214.2(f)(5)(vi). 

133See new 8 CFR 214.2(h)(8)(iii)(D)(1)(ii). 

job offer; 129 and the new or amended 

petition is nonfrivolous.130

Further, DHS notes that, under the 

current registration system, the 

petitioner identified at the registration 

stage must match the petitioner of the 

subsequently filed petition. 8 CFR 

214.2(h)(8)(iii)(D) states that a petitioner 

may not substitute the beneficiary 

named in the original registration or 

transfer the registration to another 

petitioner. This rule has not changed 

this requirement. Accordingly, USCIS 

may deny an H–1B cap-subject petition 

if an entity other than the petitioner 

identified at the registration stage, 

including a related entity, files the 

petition. 

Comment: An individual suggested 

allowing future H–1B extensions or 

renewals only with a wage level that is 

equal or greater than the wage level 

selected in the lottery for the first time. 

Response: H–1B extensions or 

renewals are not impacted by this rule, 

and DHS declines to impose a universal 

requirement that all extension or 

renewal requests must be for a position 

at the equal or greater wage level. 

Employers are permitted to file an 

extension petition requesting 

continuation of previously approved 

employment without change with the 

same employer, which most likely 

involves a position at the same wage 

level. Furthermore, employers are 

permitted to file extension or amended 

petitions requesting new employment, 

change in previously approved 

employment, new concurrent 

employment, change of employer, or 

amended employment. All of these 

petition types could involve positions 

with different SOC codes, which makes 

a straight comparison of wage levels 

impractical. 

However, under new 8 CFR 

214.2(h)(10)(ii), USCIS may deny 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 

increase the odds of selection during the 

registration or petition selection 

process, as applicable, such as by 

reducing the proffered wage to an 

amount that would be equivalent to a 

lower wage level than that indicated on 

the original petition. 

Comment: An individual commenter 

said that the formal certification 

requirement, whereby the petitioner’s 

authorized signatory certifies ‘‘that the 

proffered wage on the petition will 

equal or exceed the wage level on the 

applicable registration,’’ does not 

recognize that registrations are 

submitted in March for a fiscal year 

beginning the following October. 

Therefore, particularly in years such as 

FY 2021 where there is a second round 

of selections, H–1B cap petitions may be 

filed after OES wages have changed. The 

commenter said the new question added 

to the registration seems to address this 

concern, by specifying ‘‘[a]s of the date 

of this submission . . . ,’’ but the 

formal certification that is binding on 

the employer does not make this 

distinction, which could lead to 

unnecessary and inappropriate liability. 

The commenter said that the 

certification should be revised to reflect 

only an attestation that the wage ‘‘will 

equal or exceed the prevailing wage, in 

effect at the time of submission, that is 

associated with the wage level selected 

in the registration.’’ 

Response: DHS thanks the 

commenter, but declines to adopt the 

suggestion. As the commenter notes, the 

registration form makes sufficiently 

clear that the information provided on 

the registration is ‘‘as of the date of 

submission of this registration.’’ DHS 

believes that further changes to the form 

are unnecessary and could potentially 

lead to gaming of the registration 

system. 

3. Requests for Comments on 

Alternatives 

Comment: A research organization 

and a labor union recommended having 

staggered filing deadlines for petitions 

by wage levels as an alternative in case 

the proposed rule is met with legal 

challenges. Under this alternative, 

USCIS could have a first filing period, 

where only petitions with jobs paying 

level IV are considered. Once all the 

level IV petitions are submitted and 

approved, then a second filing period at 

a later date could be set to receive only 

petitions with jobs paying level III 

wages. After those are collected and 

approved, if there are any visas 

remaining under the H–1B cap, then a 

filing period for level II wages would be 

next, and finally a filing period for level 

I. This way, all of the petitions would 

not be submitted at once, thereby still 

allowing DHS to adjudicate and allocate 

petitions ‘‘in the order in which’’ they 

were filed, as the statute requires. If 

there were more petitions than available 

H–1B slots at a particular wage level, 

there could be a ‘‘mini-lottery’’ within 

that wage level. 

Response: DHS appreciates the 

commenters’ suggestions to use 

staggered filing deadlines. However, 

DHS believes it is not necessary to 

create staggered filing deadlines since, 

as stated in the NPRM and as explained 

above, this rule is consistent with and 

permissible under DHS’s general 

statutory authority provided in INA 

sections 103(a), 214(a) and (c), 8 U.S.C. 

1103(a), 1184(a) and (c), and HSA 

section 102, 6 U.S.C. 112.131 Further, 

DHS believes that staggered filing 

deadlines may create operational 

challenges for managing the cap and 

adjudicating petitions in a timely 

manner. Staggered filing periods could 

also have unintended consequences for 

petitioners filing H–1B cap-subject 

petitions for beneficiaries who are in F– 

1 status and seeking a change of 

status.132 Therefore, DHS declines to 

adopt this suggestion. 

Comment: One commenter suggested 

using only the beneficiary’s annual 

wage to prioritize the selection of 

registrations. 

Response: DHS appreciates the 

commenter’s suggestion to prioritize 

selection based on annual wage. 

However, DHS believes that selecting 

registrations or petitions, as applicable, 

solely based on the highest salary would 

unfairly favor certain professions, 

industries, or geographic locations. 

Therefore, DHS believes that prioritizing 

generally based on the highest OES 

wage level that the proffered wage 

equals or exceeds for the relevant SOC 

code and in the area of intended 

employment is the better alternative. 

Comment: Several commenters were 

concerned about the possibility of abuse 

by companies who would offer parttime positions at greater hourly wages, 

but would reduce overall working 

hours, to increase their chance of 

selection. Other commenters expressed 

similar concerns about potential abuse 

of part-time positions, indicating that 

review should be stricter for part-time 

H–1B applicants. 

Response: This final rule authorizes 

USCIS to reject or deny a petition or, if 

approved, revoke the approval of a 

petition, if the statement of facts 

contained on the registration form is 

inaccurate, fraudulent, misrepresents 

any material fact, or is not true and 

correct.133 Similarly, this final rule 

authorizes USCIS to deny or revoke 

approval of a subsequent new or 


tkelley on DSKBCP9HB2PROD with RULES3
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134See new 8 CFR 214.2(h)(8)(iii)(D)(1)(iii). 

135H–1B Registration Final Rule, 84 FR 888, 890. 

136U.S. Department of Homeland Security, U.S. 

Citizenship and Immigration Services, DHS 

Proposes Minimal Registration Fee for Petitioners 

Seeking to File H–1B Cap-Subject Petitions (Sept. 3, 

2019), https://www.uscis.gov/news/alerts/dhsproposes-minimal-registration-fee-for-petitionersseeking-to-file-h-1b-cap-subject-petitions. 

137See 8 CFR 214.2(h)(8)(iii)(A)(2). 

138See 8 CFR 214.2(h)(2)(i)(G). 

139See INA section 214(g)(1)(A) and (5)(C), 8 

U.S.C. 1184(g)(1)(A) and (5)(C). 

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.134 Thus, if USCIS finds that 

an employer misrepresented the parttime or full-time nature of a position, 

the number of hours the beneficiary 

would work, or the proffered salary, 

then USCIS could deny or revoke the 

petition. The ability to deny or revoke 

approval of an H–1B petition in this 

context will militate against registrants 

and petitioners attempting to abuse the 

H–1B cap selection process through 

misrepresentation. 

Comment: One commenter suggested 

that, if USCIS were to receive and rank 

more registrations (or petitions, in any 

year in which the registration process is 

suspended) at a particular prevailing 

wage level than the projected number 

needed to meet the numerical 

limitation, then USCIS should rank and 

choose registrations by the highest 

prevailing wage within that wage level. 

Another commenter stated that visas 

should be allocated by the prevailing 

wage, even within each level. 

Response: DHS does not believe that 

selecting the highest prevailing wage 

within a wage level is a better 

alternative to randomly selecting within 

a single wage level when USCIS 

receives more registrations (or petitions, 

in any year in which the registration 

process is suspended) at a particular 

prevailing wage level than the projected 

number needed to meet the numerical 

limitation. DHS prefers to give all 

registrations ranked at the particular 

wage level the same chance of selection 

because those registrations generally 

would represent workers at the same 

skill level. If DHS were to select the 

highest prevailing wage within a wage 

level, that could unfairly advantage 

registrations or petitions for positions in 

higher-paying metropolitan areas or 

occupations. 

Comment: One commenter suggested 

giving preference to beneficiaries with 

U.S. degrees. Another commenter stated 

that DHS should consider adding an 

advantage to candidates who receive a 

U.S. education as this will benefit U.S. 

institutions of higher education. 

Response: DHS declines to adopt the 

commenters’ suggestions. Registrations 

or petitions, as applicable, submitted for 

beneficiaries who have earned a 

master’s or higher degree from a U.S. 

institution of higher education already 

have a higher chance of selection 

through the administration of the 

selection process. DHS reversed the 

order in which USCIS selects 

registrations or petitions, as applicable, 

which was expected to result in an 

increase in the number of H–1B 

beneficiaries with a master’s degree or 

higher from a U.S. institution of higher 

education selected by up to 16 percent 

each year 135 and resulted in an 11 

percent increase in FY 2020.136

Comment: Some commenters said that 

DHS should consider ranking by years 

of experience, rather than by wage. One 

commenter asked DHS to give an 

advantage to candidates who have work 

experience in the United States. 

Response: DHS declines to adopt 

these alternatives, as ranking by years of 

experience would not best accomplish 

the goal of attracting the most highly 

skilled workers. DHS believes that 

salary, relative to others in the same 

occupational classification and area of 

intended employment, rather than years 

of experience, is generally more 

indicative of skill level and the relative 

value of the worker to the United States. 

Comment: A few commenters said 

that DHS should consider providing 

quotas for each wage level, rather than 

simply ranking and selecting in 

descending order by wage levels. Other 

commenters suggested setting a limit or 

quota on the number of registrations 

submitted by certain types of employers, 

such as staffing agencies or H–1B 

dependent companies. Another 

commenter supported measures to 

prevent staffing companies from filing 

multiple registrations for offshore 

workers and stated that companies 

should not be able to submit more than 

one registration per beneficiary. Another 

commenter stated that it is ‘‘crucial’’ to 

regulate consulting companies and 

staffing agencies. 

Response: DHS declines to pursue the 

alternative of setting quotas for each 

wage level or for certain types of 

companies as this alternative would not 

best accomplish the goal of attracting 

the most highly skilled workers. With 

respect to comments about prohibiting 

staffing companies from filing multiple 

registrations, DHS declines to adopt the 

commenters’ suggestions as DHS 

regulations already prohibit an 

employer from submitting more than 

one registration per beneficiary in any 

fiscal year.137 Comments about the need 

to further regulate consulting and 

staffing companies are outside the scope 

of this final rule. 

Comment: A few commenters 

suggested that DHS prohibit multiple 

H–1B petitions for the same beneficiary 

by different employers. 

Response: DHS regulations already 

prohibit a petitioner, or related entities, 

from submitting more than one H–1B 

cap-subject petition for the same 

beneficiary in the same fiscal year, 

absent a legitimate business need.138

Because registration is not intended to 

replace the petition adjudication 

process or to assess eligibility, USCIS 

cannot feasibly determine at the 

registration stage whether different 

entities that submit registrations on 

behalf of the same beneficiary are 

‘‘related’’ or have a ‘‘legitimate business 

need.’’ Further, INA section 214(g)(7), 8 

U.S.C. 1184(g)(7), allows for ‘‘multiple 

petitions [to be] approved for 1 alien.’’ 

For these reasons, DHS declines to 

adopt the commenters’ suggestion. 

Comment: One commenter stated that 

DHS should consider increasing the 

numerical cap exemption for 

beneficiaries who have earned a 

master’s or higher degree from a U.S. 

institution of higher education as most 

of the highly skilled positions do not 

depend entirely on the number of years 

of experience, but on the higher 

education degree requirements. 

Response: This rule does not affect 

either the statutorily mandated annual 

H–1B numerical limitation of 65,000 on 

the number of aliens who may be issued 

initial cap-subject H–1B visas or 

otherwise provided initial H–1B status, 

or the annual cap exemption for 20,000 

aliens who have earned a master’s or 

higher degree from a U.S. institution of 

higher education.139 As the numerical 

allocations are set by statute, DHS lacks 

the authority to adopt the commenter’s 

suggestion. 

Comment: An individual suggested 

DHS implement a ‘‘market based cap 

and selection system’’ by first 

identifying areas of the job market, like 

medical workers, that are most in need 

at the moment and, from there, ranking 

by wage or wage level. 

Response: DHS believes that 

identifying areas of the job market that 

are most in need is not feasible, as it is 

subjective and would be subject to 

constant change. This rule is not a 


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140 DHS, U.S. Immigration and Customs 

Enforcement, Establishing a Fixed Time Period of 

Admission and an Extension of Stay Procedure for 

Nonimmigrant Academic Students, Exchange 

Visitors, and Representatives of Foreign Information 

Media, 85 FR 60526 (Sept. 25, 2020). 

141 85 FR 63872. 

142U.S. Department of Homeland Security, U.S. 

Citizenship and Immigration Services, 

Strengthening the H–1B Nonimmigrant Visa 

Classification Program, 85 FR 63918 (Oct. 8, 2020). 

temporary rule that is limited in 

duration to the COVID–19 pandemic, 

and regularly adjusting selection criteria 

based on the needs of the job market 

would be administratively burdensome. 

Therefore, DHS declines to adopt the 

commenter’s suggestion. 

Comments: A few commenters 

proposed that DHS prioritize selection 

based on multiple factors, including the 

prospective beneficiary’s degree from a 

U.S. institution, the length of time 

legally studying or working in the 

United States, skills, wages, and other 

qualifications. Other commenters stated 

that the DHS should weigh other 

desirable factors, such as whether H–1B 

employees are U.S. university graduates 

and whether the petitioner is a small 

business contributing a significant 

amount of their income to wages. This 

would allow small businesses to 

compete for H–1B visas and prevent 

larger corporations from being the only 

employers to benefit from the H–1B 

program. Another comment urged DHS 

to create a prioritization system that 

incentivizes employers to petition for 

permanence for H–1B workers, among 

other desirable employer behavior in 

addition to fair compensation. 

Response: DHS believes that 

identifying and weighing multiple 

factors is not feasible, as such an 

approach could be overly complicated, 

unpredictable, and subjective. 

Therefore, DHS declines to adopt the 

commenters’ suggestions. 

Comment: A professional association 

requested that DHS exempt physicians 

from this rule. An individual suggested 

providing exceptions or waivers for 

certain industries, such as the 

healthcare/pharmaceutical fields, due to 

the different experience requirements in 

those fields. 

Response: DHS declines to exempt 

physicians or other specific occupations 

or fields from the rule. While DHS 

certainly appreciates the significant 

challenges faced by healthcare 

professionals, especially during the 

current COVID–19 pandemic, DHS 

recognizes that there are many other 

occupations that can be considered 

critical now and at various times in the 

future. Carving out exceptions for some 

occupations would be highly 

problematic, particularly as this rule is 

not a temporary rule that is limited in 

duration to the COVID–19 pandemic. 

Comment: An individual commented 

on the alternative proposal of weighting 

registrations such that ‘‘a level IV 

position would have four times greater 

chance of selection than a level I 

position, a level III position would have 

three times greater chance of selection 

than a level I position, and so on.’’ The 

commenter questioned why DHS set the 

multiples at 4 times, 3 times, and 2 

times. 

Response: The multiples of 4 times, 3 

times, and 2 times, correspond to wage 

levels IV, III, and II, respectively. As this 

commenter did not provide additional 

rationale in support of or against this 

alternative, DHS will not further 

consider this alternative. 

D. Other Issues Relating to Rule 

1. Requests To Extend the Comment 

Period 

Comments: A few commenters and a 

professional association stated that the 

public has not been given sufficient 

time to comment on the proposed rule. 

One commenter said that there is no 

substantiated reason to limit the 

comment period and that doing so 

degrades the rulemaking process. An 

individual commenter stated that 

implementing these changes for the FY 

2022 H–1B cap filing season would 

cause even more uncertainty for 

international students who already have 

faced enough uncertainty over the past 

year due to COVID–19, the Student and 

Exchange Visitor Program proposed 

rule,140 and USCIS processing times. 

An individual commenter and a 

university requested that the comment 

period be extended to 60 days because 

of the proposed rule’s magnitude and 

the impacts of COVID–19 on employers’ 

resources. A professional association 

requested the same extension to allow 

for meaningful public comment, citing 

the language of E.O. 12866 and E.O. 

13563, explaining that those executive 

orders recommend a comment period of 

no less than 60 days. The association 

listed six issues for which the proposed 

rule requests feedback and asserted that 

a 30-day comment period does not 

allow adequate time to address these 

issues. The association also said that, 

since this rule was published during the 

Thanksgiving season, the comment 

period was effectively shortened even 

further, undercutting the purpose of the 

notice and comment process. An 

individual commenter questioned why 

DHS was ‘‘rushing’’ the proposed rule 

during the holiday season as opposed to 

providing more time for public 

comment. 

Response: While DHS acknowledges 

that E.O. 12866 and 13563 indicate that 

agencies generally should provide 60 

days for public comment, DHS believes 

that the 30-day comment period was 

sufficient and declines to extend the 

comment period. This rule is narrow in 

scope, and 30 days was sufficient time 

for the public to determine the impacts 

of the proposed rule, if any, and to 

prepare and submit comments. The 

sufficiency of the 30-day comment 

period is demonstrated by the number 

of high-quality comments received from 

the public, including individuals, 

attorneys, employers, and organizations. 

Given the narrow scope of the rule, the 

quantity and quality of comments 

received in response to the proposed 

rule, and other publicly available 

information regarding the rule, DHS 

believes that the 30-day comment 

period has been sufficient. 

2. Rulemaking Process 

a. Multiple H–1B Rulemakings 

Comments: An anonymous 

commenter stated that the proposed rule 

does not discuss the DOL IFR,141 or 

explain whether DHS and DOL 

consulted with each other in drafting 

the rules. The commenter added that 

Congress has given DOL the primary 

authority in protecting U.S. labor, and 

the proposed rule does not address how 

it would interact with the DOL rule, or 

why the proposed rule was necessary 

given the DOL IFR. 

An advocacy group stated that the 

proposed rule should not be 

implemented while the DOL IFR and 

the DHS IFR, Strengthening the H–1B 

Nonimmigrant Visa Classification 

Program (H–1B Strengthening IFR),142

were pending and being challenged in 

court. The commenter said it would be 

impossible to comment on the proposed 

rule without considering the impacts of 

the other two rules that will affect the 

H–1B process as well. Similarly, a 

research organization wrote that 

recently proposed rules by Federal 

agencies with respect to wages for 

foreign workers in work visa programs 

have been inconsistent and confusing. 

An anonymous commenter stated that 

their workplace has been overworked 

for months responding to the multiple 

regulatory changes to the H–1B 

program. 

Response: On December 1, 2020, the 

U.S. District Court for the Northern 

District of California issued an order in 

Chamber of Commerce, et al. v. DHS, et 

al., No. 20–cv–7331, setting aside the 

DOL IFR and the DHS IFR. Similarly, on 

December 3, 2020, the U.S. District 


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Court for the District of New Jersey 

issued a preliminary injunction in 

ITServe Alliance, Inc., et al. v. Scalia, et 

al., No. 20–cv–14604, applying to the 

plaintiffs in that case. DOL has taken 

necessary steps to comply with the 

courts’ orders and is no longer 

implementing the DOL IFR. DHS also 

took necessary steps to comply with the 

order in Chamber of Commerce, et al. v. 

DHS, et al., and is not implementing the 

DHS IFR. DHS, therefore, disagrees with 

the commenter’s assertions that DHS 

must consider the DOL and DHS IFRs in 

the context of this final rule as both IFRs 

were set aside and are no longer being 

implemented. 

b. Other Rulemaking Process Comments 

Comments: A joint submission from 

multiple organizations opposed the 

proposed rule and said that they were 

willing to participate in an informal 

dialogue with DHS or formally 

participate in an Advance Notice of 

Proposed Rulemaking process to help 

DHS determine whether a rule is 

needed, what regulation to develop, and 

viable alternative suggestions. A trade 

association also opposed the rule and 

advised USCIS to pursue a formal 

rulemaking effort that provides 

stakeholders with more input before the 

formal rulemaking process begins. 

Response: DHS believes that the 

public has had sufficient opportunity to 

review and comment on this rule, as 

demonstrated by the number of highquality comments received from the 

public, including individuals, attorneys, 

employers, and organizations. Given the 

narrow scope of the rule, the quantity 

and quality of comments received in 

response to the proposed rule, and other 

publicly available information regarding 

the rule, DHS believes that the public 

has had sufficient opportunity to 

participate in the rulemaking process. 

Comment: A professional association 

commented that the public had no 

advance notice that the proposed rule 

was forthcoming because it was never 

listed on the Unified Agenda. The 

association also said USCIS had 

previously concluded that the policy 

now being proposed was not a 

permissible agency action, and therefore 

stakeholders were not prepared to 

conduct the sophisticated analysis 

necessary to assess the policy now being 

proposed in this rule. 

Response: DHS believes that the 

public has had sufficient opportunity to 

review and comment on this rule, as 

demonstrated by the number of highquality comments received from the 

public, including individuals, attorneys, 

employers, and organizations. Further, 

DHS explained in the NPRM that this 

rule is consistent with and permissible 

under DHS’s general statutory authority 

provided in INA sections 103(a), 214(a) 

and (c), 8 U.S.C. 1103(a), 1184(a) and 

(c), and HSA section 102, 6 U.S.C. 112, 

and DHS believes that the comment 

period provided sufficient time to assess 

the rule. 

Comment: A research organization 

wrote that the administration waited 

until the 2020 election to take 

substantive action on the H–1B 

program, and while DOL and USCIS 

have legal authority to make the 

regulatory changes, the timing and 

regulatory process have made them 

susceptible to legal challenges. An 

individual commenter said that the 

administration will change in a few 

weeks and suggested that the proposed 

rule is being rushed into 

implementation before that happens. An 

individual commenter said USCIS 

should wait to promulgate the rule until 

the new presidential administration 

takes over and the Senate confirms a 

new head of both USCIS and DHS. 

Response: DHS agrees that it has the 

legal authority to amend its regulations 

governing the selection of registrations 

submitted by prospective petitioners 

seeking to file H–1B cap-subject 

petitions (or the selection of petitions, if 

the registration process is suspended). 

DHS believes that the public has had 

sufficient opportunity to review and 

comment on this rule, as demonstrated 

by the number of high-quality 

comments received from the public, 

including individuals, attorneys, 

employers, and organizations. DHS 

believes that the public has had 

sufficient opportunity to participate in 

the rulemaking process. 

3. Effective Date and Implementation 

Comments: A few individual 

commenters supported the proposed 

rule’s immediate implementation to 

protect U.S. jobs. Another individual 

commenter contradicted claims that it is 

too late in the year for employers to 

accommodate changes in the 

registration system, saying that many 

companies wait until the new year to 

reach out to employees anyway, and 

recent changes to the H–1B process have 

made it easier to petition. 

Response: DHS agrees that this rule is 

being published with sufficient time to 

implement it for the FY 2022 

registration period. 

Comments: Many commenters, 

including a form letter campaign, said 

that, if USCIS were to finalize the 

proposed rule, it should not implement 

the proposed rule for the FY 2022 H–1B 

cap filing season (set to begin in March 

2021) because changes so close to the 

beginning of that season would 

adversely impact U.S. employers, 

immigration lawyers, and individuals. 

Multiple commenters said companies 

have already made hiring decisions 

based on the existing registration 

system, so delaying implementation 

until the FY 2023 cap filing season (set 

to begin in March 2022) would give the 

regulated community time to adjust. A 

company commented that implementing 

the rule for the upcoming H–1B cap 

filing season would create uncertainty 

and confusion. A few commenters 

added that stakeholders have had to 

adapt to the new online registration 

system, which has ongoing issues, so it 

is unlikely that further modifications to 

the registration system will be 

implemented to run smoothly for the 

upcoming H–1B season. An individual 

commenter opposed implementing the 

proposed rule at this time because the 

U.S. economy needs time and stability 

to recover. 

Response: DHS believes that this rule 

is being published with sufficient time 

to allow employers to plan 

appropriately prior to the start of the 

registration period for FY 2022. DHS 

does not believe that petitioners will 

face significant adverse impacts with 

the implementation of this change in the 

selection process and believes that 

employers have sufficient time to make 

any decisions they believe are needed as 

a result of this rule, such as increasing 

proffered wages to increase the odds of 

selection. Further, DHS believes that 

there is sufficient time to allow for 

testing and modification and that 

delaying implementation at this time is 

not necessary. 

E. Statutory and Regulatory 

Requirements 

1. Impacts and Benefits (E.O. 12866, 

13563, and 13771) 

a. Methodology and Adequacy of the 

Cost-Benefit Analysis 

Comments: Multiple commenters 

provided input on the wage data DHS 

used to analyze the impact of the 

proposed rule. A couple of commenters 

referenced that the economic analysis 

conducted in the proposed rule was 

based on previous OES wage levels, 

rather than the new ones implemented 

as a result of the DOL IFR. One of these 

commenters stated that, with the huge 

changes in the wage levels resulting 

from the DOL IFR, the H–1B data would 

be much more skewed, and the 

economic impact analysis in the 

proposed rule was completely invalid. 

Another commenter explained that all 

of the analysis done in the proposed 

rule was based on previous OES wage 


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143See DOL IFR, 85 FR 63872. 

levels and there has not been any 

economic impact analysis based on the 

new wage rules. One commenter 

expressed that this rule must be read in 

concert with the DOL IFR, which reset 

how prevailing wage levels were 

calculated for H–1Bs. To get selected in 

the H–1B registration process under the 

proposed rule, the employer would have 

to pay a level III or IV prevailing wage, 

but those wages would be so artificially 

high that employers would not be able 

to pay them. The commenter concluded 

that DHS should push the proposed rule 

back at least one year to allow time for 

next year’s H–1B data to become 

available. Another commenter said 96 

percent of total applicants still would 

fall into the new OES wage ‘‘level 1 

below’’ and would be eligible for 

random selection, so the proposed rule 

would not have an impact. A 

commenter echoed concerns about the 

use of previous OES wage levels, 

writing that DHS’s analysis in the 

proposed rule was invalid. 

Response: The NPRM analysis was 

written using the appropriate baseline 

and the best information that was 

available to DHS at that time, which was 

prior to the publication of the DOL 

IFR.143 On December 1, 2020, the U.S. 

District Court for the Northern District 

of California issued an order in 

Chamber of Commerce, et al. v. DHS, et 

al., No. 20–cv–7331, setting aside the 

DOL IFR. Similarly, on December 3, 

2020, the U.S. District Court for the 

District of New Jersey issued a 

preliminary injunction in ITServe 

Alliance, Inc., et al. v. Scalia, et al., No. 

20–cv–14604, applying to the plaintiffs 

in that case. DOL has taken necessary 

steps to comply with the courts’ orders 

and no longer is implementing the DOL 

IFR. DHS, therefore, disagrees with the 

commenter’s assertion that DHS must 

analyze the DOL IFR in the context of 

this final rule. This final rule does not 

require employers pay a higher wage, 

instead it prioritizes selection of 

registrations or petitions, as applicable, 

generally based on the highest OES 

prevailing wage level that the proffered 

wage equals or exceeds for the relevant 

SOC code and area(s) of intended 

employment. The selection of H–1B 

registrations or petitions, as applicable, 

will be based on the existing OES wage 

levels at the time of submission, and the 

economic analysis in the proposed rule 

properly accounted for OES prevailing 

wage levels that were in effect at the 

time the analysis was conducted and 

remain in effect at this time. 

Comments: An anonymous 

commenter stated that Table 13 of the 

NPRM is inconsistent with the proposed 

rule’s language. The commenter 

questioned why there would be level III 

and IV registrations selected in the 

advanced degree exemption if level III 

and IV registrations would be ‘‘100% 

selected’’ in the regular cap, and the 

proposed rule would not affect the order 

of selection between the regular cap and 

advanced degree exemption. 

Response: This final rule will not 

affect the order of selection between the 

regular cap and advanced degree 

exemption or the number of 

registrations that will be selected for 

each allocation. USCIS first selects 

registrations toward the number 

projected as needed to reach the regular 

cap, from among all registrations 

properly submitted, including those 

indicating that the beneficiary will be 

eligible for the advance degree 

exemption. USCIS then selects 

registrations indicating eligibility for the 

advanced degree exemption using the 

same process. With the revised selection 

method based on corresponding OES 

wage level and ranking shown in Table 

13, the approximated average indicates 

that all registrations with a proffered 

wage that corresponds to OES wage 

level IV or level III would be selected 

and 58,999, or 75 percent, of the 

registrations with a proffered wage that 

corresponds to OES wage level II would 

be selected toward the regular cap 

projections. None of the registrations 

with a proffered wage that corresponds 

to OES wage level I or below would be 

selected toward the regular cap 

projections. For the advanced degree 

exemption, DHS estimates all 

registrations with a proffered wage that 

corresponds to OES wage levels IV and 

III would be selected and 12,744, or 20 

percent, of the registrations with a 

proffered wage that corresponds to OES 

wage level II would be selected. DHS 

estimates that none of the registrations 

with a proffered wage that corresponds 

to OES wage level I or below would be 

selected. 

Comments: A couple of commenters 

wrote that DHS took wage levels 

specified as ‘‘N/A’’ and consolidated 

them with level I wages in its Table 7 

calculations even though there is no 

evidentiary basis for assuming that 

characterization or correlation to be 

accurate or appropriate. Wages 

negotiated under a collective bargaining 

agreement often exceed market rates, 

and private wage surveys frequently 

have more than 4 wage levels, which 

makes direct analogy to OES 

impractical, if not impossible. Since 

there was no way to determine the true 

ranking of the N/A petitions, they 

should have been excluded from the 

allocation rather than arbitrarily added 

to the level I share. Consolidating them 

had the prejudicial effect of attributing 

31.5 percent of regular cap and 37 

percent of advanced degree cap to level 

I, when, in fact, those numbers would 

have been 22.8 percent and 27.5 

percent, respectively, had level I counts 

not included the petitions whose wage 

level was N/A. An individual 

commenter similarly wrote that DHS’s 

analysis incorrectly claims that a 

number of petitions are categorized as 

having a wage level of N/A due to 

modifications to DOL’s SOC structure in 

2018. The commenter stated that all FY 

2019 and FY 2020 petitions were filed 

using the 2010 SOC structure and thus 

the 2018 SOC structure would not 

impact those petitions. The commenter 

said that the N/A designations are likely 

because Question 13 on Form 9035 only 

requires a designation of OES wage 

levels when relying on a prevailing 

wage and is left blank when petitions 

rely on a permissible alternative. This 

commenter also stated that, according to 

DHS’s analysis in Table 6, the OES 

Wage Level was unavailable about 12 

percent of the time for cap-subject H–1B 

petitions selected for adjudication in 

FYs 2019 and 2020. DHS labels these 

petitions as ones where the OES Wage 

Level is ‘‘N/A’’ and then, curiously, 

includes all such ‘‘N/A’’ OES Wage 

Level petitions as level I petitions for 

purposes of its analysis when they are 

not particularly likely to be all or mostly 

level I jobs. 

Response: DHS understands and 

agrees with the commenter that N/A 

designations are likely when registrants 

rely on a permissible alternative private 

wage source that is not based on the 

OES survey. For these registrants 

choosing to rely on a prevailing wage 

that is not based on the OES survey, if 

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. DHS deliberately chose to group 

these registrations together with level I 

registrations so that petitioners relying 

on non-OES sources would have a fairer 

chance of selection than if they were 

ranked below level I registrations, and 

to avoid penalizing prospective 

petitioners who properly rely on a 

private wage survey to determine the 

required wage for the proffered position. 

As explained in response to other 

comments, DHS does not agree with the 

suggestions to separate OES prevailing 

wage level I from those falling below 

level I. DHS expects that all petitioners 

offering a wage lower than the OES 

wage level I wage will be using a 

legitimate source other than OES or an 


tkelley on DSKBCP9HB2PROD with RULES3
1712 Federal Register / Vol. 86, No. 5 / Friday, January 8, 2021 / Rules and Regulations 

independent authoritative source, 

including a private wage survey. 

Therefore, such a change effectively 

could preclude petitioners that utilize 

one of those other sources from being 

selected for registration. By grouping 

OES wage level I and below OES wage 

level I together, those petitioners have a 

fairer chance of selection. DHS was 

unable to estimate how many 

registrations, initially classified as N/A, 

would end up in each wage level 

classification as a result of this rule. Due 

to data limitations and missing data, 

DHS may have included some N/A wage 

information into OES wage level I and 

below that could be classified as a wage 

higher than level I in the future. If DHS 

did not incorporate the petitions that 

fell into the N/A category, then the 

overall total of petitions would have 

been understated. DHS analysis used 

estimates in the Unquantified Costs & 

Benefits section to show a possible 

outcome and distribution of 

registrations once this rule is 

implemented. 

Comments: A trade association wrote 

that DHS conducted insufficient data 

collection to assess the impact of the 

proposed rule, given that it has OES 

skill wage level data for only 56 percent 

of registered H–1B petitions selected in 

the lottery. The commenter wrote that 

DHS should review data on all H–1B 

adjudications to better assess the 

relative distribution of H–1B petitions 

by OES level, or conduct a survey of H– 

1B employers to better quantify the 

impact of the proposed rule by OES 

level. 

Response: USCIS analyzed the 

impacts of this rule in an objective 

manner using the best available data at 

the time the analysis was written. DHS 

has OES wage level data only on the 56 

percent of petitions that were selected 

toward the numerical allocations from 

FY 2019 and FY 2020. DHS does not 

have the wage level break down for the 

44 percent of petitions that were not 

selected since those petitions were 

returned to petitioners without entering 

data into DHS databases. The wage level 

break downs for the 56 percent that 

were selected for adjudication had a 

similar distribution for both FY 2019 

and FY 2020. DHS used this distribution 

as an estimate of what the future 

registrations split out by wage levels 

may look like for the missing 44 percent 

of petitions. 

Comments: An individual commenter 

said the proposed rule does not analyze 

the indirect impact the rule will have on 

the wages of employees, only those 

directly impacted by the rule. The 

commenter also wrote that the proposed 

rule does not consider its impact on 

employers whose higher marginal costs 

cause them to forego expansion or close 

down. An individual commenter said 

that DHS does not provide evidence to 

support its statement that the proposed 

rule will have no effect on wages or 

growth, writing that it is unlikely that 

the rule will not depress wages and 

growth. 

Response: DHS acknowledges that 

some petitioners might be impacted in 

terms of employment, productivity loss, 

search and hire costs, and profits 

resulting from labor turnover. The 

current random lottery system does not 

guarantee registrants that they will be 

able to petition for H–1B workers, and 

it could have the same effects and cause 

companies to search for alternative 

options. In cases where companies 

cannot find reasonable substitutes for 

the labor the H–1B beneficiaries would 

have provided, if selected under the 

random lottery process, affected 

petitioners also could lose profits from 

the lost productivity. In such cases, 

employers would incur opportunity 

costs by having to choose the next best 

alternative to immediately fill the job 

the prospective H–1B worker would 

have filled. The commenter provided 

neither an explanation nor a basis to 

support the claim that wages would be 

depressed. DHS acknowledges that 

some employers’ growth (profit) could 

be affected; however, asserting that 

economic growth would be harmed fails 

to account for the fact that this rule will 

not reduce or otherwise affect the 

statutorily authorized number of initial 

H–1B visas granted per year. USCIS 

analyzed the impacts of this rule in an 

objective manner using the best 

available data at the time the analysis 

was written and does not have 

quantifiable data on the effect on wages 

or growth. 

Comment: A law firm stated that the 

DHS does not sufficiently quantify the 

impact of costs to petitioners, including 

training, labor for substitute workers, 

loss of productivity, and loss of revenue. 

The commenter wrote that, to meet the 

requirements of E.O. 12866, DHS should 

explain its justification for proposing 

changes recognized to have a negative 

impact on productivity and revenue of 

petitioners. The commenter also asked 

DHS to explain how the proposed rule 

was tailored to ensure it imposed the 

least possible burden on society as 

required under E.O. 12866. 

Response: Executive Orders 12866 

and 13563 direct agencies to assess the 

costs, benefits, and transfers of available 

alternatives, and if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). DHS analyzed all potential 

costs, benefits, and transfers of this rule. 

While DHS understands there are costs 

to some populations, there also are 

benefits to other populations. 

Comment: An advocacy group wrote 

that DHS states that an increase in H– 

1B recipients with higher salaries will 

compensate for any loss in international 

students and early career professionals 

under the proposed rule. However, the 

commenter states that DHS does not 

provide any analysis to this effect and 

should provide a more precise estimate 

of the costs associated with changes, 

particularly whether the rule would 

have an impact on the ability of 

employers to attract talented employees. 

Response: DHS does not believe that 

this rule will negatively impact the 

ability of employers to attract talented 

employees. Rather, DHS believes that 

this rule will allow employers to attract 

the best and the brightest employees. 

Comment: A law firm said the costs 

of the proposal are inconsistent with the 

aggregate cost savings the agency 

expected unselected petitions and the 

government to realize from registration. 

OMB designated the proposed rule as an 

‘‘economically significant’’ regulatory 

action. In the NPRM, DHS estimated 

that, for a ten-year implementation 

period, the costs to the public would be 

more than $15.9 million annualized at 

3-percent, and more than $16 million 

annualized at 7-percent. DHS also 

acknowledged the possibility that the 

proposed regulation ‘‘could result in 

private sector expenditures exceeding 

$100 million, adjusted for inflation to 

$168 million in 2019 dollars, in any 1 

year.’’ The costs likely are higher, as the 

agency has grossly underestimated the 

time-burden of this proposed regulation, 

such as suggesting that it will take a 

mere 20 minutes more to prepare the 

registration. 

Response: DHS acknowledges that 

this final rule has been designated an 

economically significant regulatory 

action by the Office of Information and 

Regulatory Affairs (OIRA), of the Office 

of Management and Budget. However, 

OIRA has waived review of this 

regulation under E.O. 12866, section 

6(a)(3)(A). DHS disagrees that it will 

take more than 20 minutes to complete 

the additional information collection 

associated with the registration tool. 

Registrants or petitioners, as applicable, 

only will be required to provide, in 

addition to the information already to be 

collected, the highest OES prevailing 

wage level that the proffered wage 

equals or exceeds for the relevant SOC 

code in the area of intended 


tkelley on DSKBCP9HB2PROD with RULES3
Federal Register / Vol. 86, No. 5 / Friday, January 8, 2021 / Rules and Regulations 1713 

144See INA section 286(m), 8 U.S.C. 1356(m). 

145Continuing Appropriations Act, 2021 and 

Other Extensions Act, Public Law 116–159, 134 

Stat. 709 (Oct 1, 2020). 

146See U.S. Department of Homeland Security, 

U.S. Citizenship and Immigration Services, USCIS 

Averts Furlough of Nearly 70% of Workforce (Aug. 

25, 2020), https://www.uscis.gov/news/newsreleases/uscis-averts-furlough-of-nearly-70-ofworkforce. 

employment. In the limited instance 

where there is no current OES 

prevailing wage information for the 

proffered position, the registrant will 

follow DOL guidance on prevailing 

wage determinations to determine 

which OES wage level to select on the 

registration, and USCIS will rank and 

select based on the highest OES wage 

level. 

b. Costs 

Comments: An individual commenter 

stated that, under the proposed rule, 

USCIS would incur additional costs 

related to maintaining records detailing 

how USCIS processed each H–1B 

petition to document the correct 

handling and prioritization of all 

petitions. The commenter also wrote 

that USCIS’s cost for processing 

petitions will increase significantly, as it 

will have to review each petition for 

salary, location, and job code to 

determine sorting order. Another 

commenter wrote that the proposed rule 

indicates that DHS would not incur 

additional costs to the government 

because the agency could increase filing 

fees to cover costs, but that, itself, 

indicates the proposed rule would result 

in costs to DHS that should have been 

fully analyzed. 

Response: The INA provides for the 

collection of fees through USCIS’s 

biannual fee schedule review, at a level 

that will ensure recovery of the full 

costs of providing adjudication and 

naturalization services by DHS. This 

includes administrative costs and 

services provided without charge to 

certain applicants and petitioners.144

DHS notes the time necessary for USCIS 

to review the information submitted 

with the forms relevant to this final rule 

includes the time to adjudicate the 

benefit request. These costs are captured 

in the fees collected for the benefit 

request from petitioners. DHS accounts 

for familiarization cost and additional 

costs due to the increased burden per 

response for the petitioners, which is 

shown as costs in the Regulatory Impact 

Analysis. Other form applications and 

petition fees will cover the increased 

adjudication costs until the fee rule is 

reassessed 

Comment: One commenter wrote that 

the proposed rule likely would require 

technical changes to USCIS’s 

registration system that the agency has 

already implemented for the FY 2021 

H–1B cap season. The commenter added 

that it is noteworthy that the proposed 

rule follows a recent announcement that 

USCIS must furlough 70 percent of its 

workforce. Another commenter said 

that, if this rule is put in place, 

companies will stop hiring foreign 

workers and USCIS will lose the 

revenue from this program as it is 

already in a fiscal crisis. 

Response: The President of the United 

States signed into law the Continuing 

Appropriations Act, 2021 and Other 

Extensions Act, H.R. 8337,145 which 

became Public Law 116–159, on October 

1, 2020. This public law includes 

language from the Emergency Stopgap 

USCIS Stabilization Act, which allows 

USCIS to establish and collect 

additional premium processing fees, 

and to use those additional funds for 

expanded purposes. Because of the 

authorization to increase premium 

processing fees, and cost-savings 

measures taken by the agency, USCIS is 

in a better place financially. As a result, 

USCIS was able to avoid all potential 

furloughs, and, barring unforeseen 

changes in circumstances, any potential 

furloughs in FY 2021.146

c. Benefits 

Comment: An individual commenter 

wrote that the proposed rule has been 

criticized for favoring larger firms over 

smaller businesses and startups, but it is 

unlikely that these types of businesses 

would immediately need the types of 

high salaried workers who would 

qualify for an H–1B visa. Instead, the 

commenter said there should be 

sufficient domestic talent under this 

rule to meet those labor needs. An 

individual commenter wrote that the 

proposed rule would have the benefit of 

curbing the practice of employers 

underpaying H–1B petitioners by 

offering level I wages to those with 

sufficient experience for higher wages. 

As a result, employers will not be able 

to favor cheaper international labor and 

would consider domestic labor. 

Response: DHS agrees with this 

commenter that there should be 

sufficient replacement labor available in 

the U.S. workforce that can meet 

domestic labor needs. This rule will 

help the U.S. workforce, as employers 

that might have petitioned for capsubject H–1B workers to fill relatively 

lower-paid, lower-skilled positions, may 

be incentivized to hire available and 

qualified U.S. workers for those 

positions. 

Comment: Referencing DHS’s 

suggestion that one of the proposed 

rule’s unquantified benefits is increased 

opportunities for lower-skilled U.S. 

workers in the labor market, an 

individual commenter stated that lowskilled workers cannot replace H–1B 

specialty occupation workers. 

Response: DHS disagrees. If an 

employer is hiring an entry-level 

employee at a level I prevailing wage, 

then an available and qualified U.S. 

worker can be a substitute. 

2. Paperwork Reduction Act 

Comments: A commenter stated that 

requiring an employer to provide a wage 

level at the time of electronic 

registration for the H–1B cap seems to 

violate the Paperwork Reduction Act 

(PRA), which generally only permits the 

collection of information needed to 

meet a legally supported objective. The 

commenter indicated DHS has not 

adequately explained how collecting the 

OES prevailing wage level at the time of 

electronic registration is consistent with 

the PRA, as employers are not required 

to obtain an LCA at the time of the 

electronic registration for the H–1B cap. 

Response: DHS disagrees that 

requiring the registrant to provide the 

wage level that the proffered wage 

corresponds to for the relevant SOC and 

area of employment, or that corresponds 

to the position requirements when OES 

wage data is unavailable, at the time of 

electronic registration for the H–1B cap 

would violate the PRA. Once this rule 

becomes effective, collection of such 

information would be needed to 

implement the rule and to select 

registrations in accordance with this 

rule, and thus would be a legally 

supported objective. As noted in the 

NPRM, an LCA is not a requirement for 

registration. However, consistent with 

the registrant’s attestation that the 

registration is submitted for a valid offer 

of employment, DHS expects each 

registrant (i.e., the prospective 

petitioner or the attorney or accredited 

representative submitting the 

registration for the prospective 

petitioner) to know and be able to 

provide the relevant corresponding 

wage level when submitting a 

registration, regardless of whether they 

have a certified LCA at that time. 

F. Out of Scope 

An individual commenter called for 

relief for those who need housing and 

food, ‘‘instead of bringing in foreigners.’’ 

Another individual commenter said that 

the increase in H–1B visas and 

outsourcing to foreign contractors 

caused their spouse’s wages to stagnate 

despite increased responsibility, and 


tkelley on DSKBCP9HB2PROD with RULES3
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147 DOL IFR, 85 FR 63872; H–1B Strengthening 

IFR, 85 FR 63918. 148H–1B Strengthening IFR, 85 FR 63918. 

fewer U.S. born entry-level employees 

were hired. Yet another individual 

commenter wrote that the agency 

should make it easier to report visa 

fraud, and that stricter, more 

comprehensive punishments should be 

in place for visa fraud. A few 

anonymous commenters said that the 

H–1B visa is a ‘‘scam.’’ A trade 

association wrote in opposition to two 

other rules related to the H–1B visa 

published by DOL and DHS, the latter 

of which revised the definition of 

‘‘specialty occupations’’ eligible for H– 

1B visas, limited visas to one year for 

third party worksites, and expanded 

DHS worksite oversight.147 Another 

trade association also wrote in 

opposition to the DOL and DHS IFRs, 

objecting specifically to the DHS IFR’s 

revisions to the definitions of ‘‘specialty 

occupations’’ and ‘‘U.S. employer,’’ the 

requirements for corroborating evidence 

for specialty occupations, and the 

amended validity period for third-party 

placement at worksites.148 The 

commenter provided background 

information and a summary of the DHS 

IFR. One commenter said the lottery 

system is unfair, and USCIS should 

instead focus on limiting fraud and 

abuse of the lottery system. Yet another 

trade association opposed the proposed 

rule and suggested that the Agency 

implement reforms as discussed in the 

National Association of Manufacturer’s 

‘‘A Way Forward’’ plan, including 

statutory changes to the H–1B program, 

border security measures, asylum, and 

other immigration programs. A union 

argued that due to the ‘‘timing and 

rushed nature’’ of the DOL IFR and this 

proposed rule, any changes are 

vulnerable to procedural challenge and 

are likely politically motivated. The 

commenter went on to provide 

extensive feedback on the DOL and DHS 

IFRs and the H–1B program at large, 

calling for immigration reform and 

urging the Departments of Labor and 

Homeland Security to make structural 

changes to the H–1B program that 

protect workers’ rights. A research 

organization wrote about the H–1B 

program in general, saying that allowing 

outsourcing companies to hire H–1B 

workers lets employers use the 

immigration system to ‘‘degrade labor 

standards for skilled workers’’ and 

exploit H–1B employees. Additionally, 

the commenter argued that outsourcing 

companies are using the H–1B program 

to underpay H–1B workers, replace U.S. 

workers, and send tech jobs abroad. A 

submission on behalf of U.S. citizen 

medical graduates urged expanding the 

H–1B and J–1 visa ban to include the 

healthcare sector, prioritizing U.S. 

citizens for placement in residency 

programs, or that the Accreditation 

Council for Graduate Medical Education 

(ACGME) consider opening up more 

residency spots and new residency 

programs. A professional association 

recommended that USCIS modify its 

regulation at 8 CFR 214.2(h)(8)(iii)(A)(4) 

(‘‘Limitation on requested start date’’) 

permitting a requested start date on or 

after the first day for the applicable 

fiscal year. 

Response: DHS appreciates these 

comments; however, DHS did not 

propose to address these issues in the 

proposed rule, so these comments fall 

outside of the scope of this rulemaking. 

DHS is finalizing this rule as proposed. 

V. Statutory and Regulatory 

Requirements 

A. Executive Orders 12866 (Regulatory 

Planning and Review), Executive Order 

13563 (Improving Regulation and 

Regulatory Review), and Executive 

Order 13771 (Reducing Regulation and 

Controlling Regulatory Costs) 

Executive Orders (E.O.) 12866 and 

13563 direct agencies to assess the costs, 

benefits, and transfers of available 

alternatives, and if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). Executive Order 13563 

emphasizes the importance of 

quantifying both costs and benefits, of 

reducing costs, of harmonizing rules, 

and of promoting flexibility. 

Pursuant to Executive Order 12866 

(Regulatory Planning and Review), the 

Office of Information and Regulatory 

Affairs (OIRA), of the Office of 

Management and Budget, has 

determined that this final rule is an 

economically significant regulatory 

action. However, OIRA has waived 

review of this regulation under section 

6(a)(3)(A) of Executive Order 12866. 

1. Summary of Economic Effects 

DHS is amending its regulations 

governing the selection of registrants 

eligible to file H–1B cap-subject 

petitions, which includes petitions 

subject to the regular cap and those 

asserting eligibility for the advanced 

degree exemption, to allow for ranking 

and selection based on OES wage levels 

corresponding to their SOC codes. 

USCIS will rank and select the 

registrations properly submitted (or 

petitions in any year in which the 

registration process is suspended) 

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. USCIS will begin with 

OES wage level IV and proceed in 

descending order with OES wage levels 

III, II, and I. DHS is amending the 

relevant sections of DHS regulations to 

reflect these changes. 

The described change in selection is 

expected to result in a different 

allocation of H–1B visas (or grants of 

initial H–1B status) favoring petitioners 

that proffer relatively higher wages. In 

the analysis that follows, DHS presents 

its best estimate for how H–1B 

petitioners will be affected by and will 

respond to the increased probability of 

selection of registrations of petitions 

proffering the highest wages for a given 

occupation and area of employment. 

DHS estimates the net costs that will 

result from this final rule compared to 

the baseline of the H–1B visa program. 

For the 10-year implementation period 

of the rule, DHS estimates the 

annualized costs to the public would be 

$15,968,792 annualized at 3-percent, 

$16,089,770 annualized at 7-percent. 

Table 1 provides a more detailed 

summary of the final rule provisions 

and their impacts. 


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149White House, Office of Management and 

Budget, Circular A–4 (Sept. 17, 2003), available at 

https://www.whitehouse.gov/sites/whitehouse.gov/ files/omb/circulars/A4/a-4.pdf (last visited Aug. 11, 

2020). 

TABLE 1—SUMMARY OF PROVISIONS AND ECONOMIC IMPACTS OF THE FINAL RULE

Provision Description of changes to provision Estimated costs of provisions Estimated benefits of provisions 

Currently, USCIS randomly selects H– 

1B registrations or cap-subject petitions, as applicable. USCIS will 

change the selection process to 

prioritize selection of registrations or 

cap-subject petitions, as applicable, 

based on corresponding OES wage 

level.

DHS regulations currently address H– 

1B cap allocation in various contexts: 

1. Fewer registrations than needed 

to meet the H–1B regular cap. 

2. Sufficient registrations to meet 

the H–1B regular cap during the 

initial registration period. 

3. Fewer registrations than needed 

to meet the H–1B advanced degree exemption numerical limitation. 

4. Sufficient registrations to meet 

the H–1B advanced degree exemption numerical limitation during the initial registration period. 

5. Increase to the number of registrations projected to meet the 

H–1B regular cap or advanced 

degree exemption allocations in 

a FY. 

6. H–1B cap-subject petition filing 

following registration—(1) Filing 

procedures. 

7. Petition-based cap-subject selections in event of suspended registration process. 

8. Denial of petition. 

9. Revocation of approval of petition. 

USCIS will rank and select H–1B registrations (or H–1B petitions if the 

registration requirement is suspended) generally based on the 

highest OES wage level that the 

proffered wage equals or exceeds for 

the relevant SOC code and area(s) 

of intended employment. This final 

rule will add instructions and a question to the registration form to select 

the appropriate wage level. This final 

rule also will add instructions and 

questions to the H–1B petition seeking the same wage level information 

and other information concerning the 

proffered position to assess the prevailing wage level. This final rule will 

not affect the order of selection as 

between the regular cap and the advanced degree exemption. 

If USCIS receives and ranks more registrations at a particular wage level 

than the projected number needed to 

meet the numerical limitation, USCIS 

will randomly select from all registrations within that particular wage level 

a sufficient number of registrations 

needed to reach the numerical limitation. 

USCIS is authorized to deny a subsequent new or amended petition filed 

by the petitioner, or a related entity, 

on behalf of the same beneficiary for 

a lower wage level if USCIS determines that the new or amended petition was filed to reduce the wage 

level listed on the original petition to 

unfairly increase the odds of selection during the registration selection 

process. 

In any year in which USCIS suspends 

the H–1B electronic registration process for cap-subject petitions, USCIS 

will, instead, allow for the submission 

of H–1B cap-subject petitions. After 

USCIS receives a sufficient number 

of petitions to meet the H–1B regular 

cap and were to complete the selection process of petitions for the H–1B 

regular cap following the same method of ranking and selection based on 

corresponding OES wage level, 

USCIS will determine whether there 

is a sufficient number of remaining 

petitions to meet the H–1B advanced 

degree exemption numerical limitation. 

Quantitative: 

Petitioners— • $3,457,401 costs annually for 

petitioners completing and filing 

Form I–129 petitions with an additional time burden of 15 minutes. • $11,795,997 costs annually for 

prospective petitioners submitting electronic registrations with 

an additional time burden of 20 

minutes. 

DHS/USCIS— • None. 

Qualitative: 

Petitioners— 

• Petitioners may incur costs to 

seek out and train other workers, or to induce workers with 

similar qualifications to consider 

changing industry or occupation. 

• Petitioners that would have hired 

relatively low-paid H–1B workers, but were unable to do so 

because of non-selection (and 

ineligibility to file petitions), may 

incur reduced labor productivity 

and revenue. 

• Petitioners may incur costs from 

offering beneficiaries higher 

wages for the same work to 

achieve greater chances of selection. 

DHS/USCIS— 

• None. 

Quantitative: 

Petitioners— • None. 

DHS/USCIS— • None. 

Qualitative: 

U.S. Workers— • A possible increase in employment opportunities for similarly 

skilled unemployed or underemployed U.S. workers seeking 

employment in positions otherwise offered to H–1B cap-subject beneficiaries at wage levels 

corresponding to lower wage positions. 

H–1B Workers— 

• A possible increase in productivity, measured in increased H– 

1B wages, resulting from the reallocation of a fixed number of 

visas from positions classified as 

lower-level work to employers 

able to pay the highest wages 

for the most highly skilled workers. 

• A possible increase in wages for 

positions offered to H–1B capsubject beneficiaries for the 

same work to improve the prospective petitioner’s chance of 

selection. 

Petitioners— 

• Level I and level II beneficiaries 

may see increased wages. Companies who have historically 

paid level I wages may be 

incentivized to offer their H–1B 

employees higher wages, so 

that they could have a greater 

chance of selection at a level II 

or higher. • Employers who offer H–1B 

workers wages that corresponds 

with level III or level IV OES 

wages may have higher chances 

of selection. 

DHS/USCIS— • Submitting additional wage level 

information on both an electronic 

registration and on Form I–129 

will allow USCIS to maintain the 

integrity of the H–1B cap selection and adjudication processes. • Registrations or petitions, as applicable, will be more likely to be 

selected under the numerical allocations for the highest paid, 

and presumably highest skilled 

or highest-valued, beneficiaries. 

Familiarization Cost ............................... Familiarization costs comprise the opportunity cost of the time spent reading and understanding the details of 

a rule to fully comply with the new 

regulation(s). 

Quantitative: 

Petitioners— • One-time cost of $6,285,527 in 

FY 2022. 

DHS/USCIS— • None. 

Qualitative: 

Petitioners— • None. 

DHS/USCIS— 

None. 

Quantitative: 

Petitioners— • None. 

DHS/USCIS— • None. 

Qualitative: 

Petitioners— • None. 

DHS/USCIS— 

• None. 

In addition to the impacts 

summarized here, Table 2 presents the 

accounting statement as required by 

OMB Circular A–4.149

TABLE 2—OMB A–4 ACCOUNTING STATEMENT

[$, 2019 for FY 2022–FY 2032] 

Category Primary estimate Minimum estimate Maximum estimate Source citation 

Benefits: 

Annualized Monetized Benefits over 10 years 

(discount rate in parenthesis).

N/A 

N/A 

N/A 

N/A 

N/A 

N/A 


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150 DHS acknowledges, however, that some 

employers may increase the wages of existing H– 

1B workers without changing job requirements or 

requiring higher levels of education, skills, training, 

and experience. In those cases, there may not be 

anticipated vacancies at wage levels I and II for U.S. 

workers to fill. 

151See INA section 101(a)(15)(H)(i)(b), 8 U.S.C. 

1101(a)(15)(H)(i)(b); Public Law 101–649, section 

222(a)(2), 104 Stat. 4978 (Nov. 29, 1990); 8 CFR 

214.2(h). 

152See INA section 214(i)(l), 8 U.S.C. 1184(i)(l). 

153See INA section 214(g)(1)(A), 8 U.S.C. 

1184(g)(1)(A). 

TABLE 2—OMB A–4 ACCOUNTING STATEMENT—Continued 

[$, 2019 for FY 2022–FY 2032] 

Category Primary estimate Minimum estimate Maximum estimate Source citation 

Annualized quantified, but un-monetized, benefits 0 0 0 

Unquantified Benefits ............................................. This final rule will benefit petitioners agreeing to pay H–1B workers a proffered 

wage corresponding to OES wage level III or IV, by increasing their chance 

of selection in the H–1B cap selection process. These changes align with the 

Administration’s goals of improving policies such that the H–1B classification 

more likely will be awarded to the highest paid or highest skilled beneficiaries. These changes will also better align the administration of the H–1B 

program with the dominant Congressional intent. 

RIA. 

This final rule may provide increased opportunities for similarly skilled U.S. 

workers in the labor market to compete for work as there will be fewer H–1B 

workers paid at the lower wage levels to compete with U.S. workers.150

Further, assuming demand outpaces the 85,000 visas currently available for 

annual allocation, DHS believes that the potential reallocation of visas to 

favor those petitioners able to offer the highest wages to recruit the most 

highly skilled workers will result in increased marginal productivity of all H– 

1B workers. 

This final rule may provide increased wages for positions offered to H–1B capsubject beneficiaries. 

Costs: 

Annualized monetized costs over 10 years (discount rate in parenthesis).(3 percent) $15,968,792 

(7 percent) $16,089,770 

N/A 

N/A 

N/A 

N/A 

RIA. 

Annualized quantified, but un-monetized, costs .... N/A 

Qualitative (unquantified) costs .............................. This final rule is expected to reduce the number of petitions for lower wage H– 

1B workers. This may result in increased recruitment or training costs for petitioners that seek new pools of talent. Additionally, petitioners’ labor costs or 

training costs for substitute workers may increase. DHS also acknowledges 

that some petitioners might be impacted in terms of the employment, productivity loss, search and hire cost per employer of $4,398, and profits resulting 

from labor turnover. In cases where companies cannot find reasonable substitutions for the labor the H–1B beneficiary would have provided, affected 

petitioners will also lose profits from the lost productivity. In such cases, employers will incur opportunity costs by having to choose the next best alternative to immediately filling the job the prospective H–1B worker would have 

filled. There may be additional opportunity costs to employers such as 

search costs and training. 

RIA. 

Such possible disruptions to companies will depend on the interaction of a 

number of complex variables that are constantly in flux, including national, 

state, and local labor market conditions, economic and business factors, the 

type of occupations and skills involved, and the substitutability between H– 

1B workers and U.S. workers. 

Petitioners that would have hired relatively lower-paid H–1B workers, but were 

unable to do so because of non-selection (and ineligibility to file a petition), 

may incur reduced labor productivity and revenue. 

Transfers: 

Annualized monetized transfers: ‘‘on budget’’ ....... N/A N/A N/A 

From whom to whom? ...........................................

Annualized monetized transfers: ‘‘off-budget’’ ....... N/A N/A N/A 

From whom to whom? ........................................... N/A N/A N/A 

Miscellaneous analyses/category Effects Source citation 

Effects on state, local, and/or tribal governments ......... N/A RFA. 

Effects on small businesses .......................................... N/A RFA. 

Effects on wages ........................................................... N/A None. 

Effects on growth .......................................................... N/A None. 

2. Background and Purpose of the Final 

Rule 

The H–1B visa program allows U.S. 

employers to temporarily hire foreign 

workers to perform services in a 

specialty occupation, 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.151 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.152

The number of aliens who may be 

issued initial H–1B visas or otherwise 

provided initial H–1B nonimmigrant 

status during any FY has been capped 

at various levels by Congress over time, 

with the current numerical limit 

generally being 65,000 per FY.153

Congress has also provided for various 

exemptions from the annual numerical 

allocations, including an exemption for 


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154See INA section 214(g)(5) and (7), 8 U.S.C. 

1184(g)(5) and (7). 

155See 8 CFR 214.2(h)(8)(iii)(A). 

156See 8 CFR 214.2(h)(8)(iii)(A)(5)–(6). 

157See 8 CFR 214.2(h)(8)(iii)(D)(2). 

158See 8 CFR 214.2(h)(8)(iii)(A)(1). 

159See 8 CFR 214.2(h)(4)(i)(B). 

160See 20 CFR 655.731 through 655.735. 

161See new 8 CFR 214.2(h)(8)(iii)(A)(1)(i). 

162See new 8 CFR 214.2(h)(8)(iii)(A)(1)(i). 

163See new 8 CFR 214.2(h)(8)(iii)(A)(5)–(6). 

164 In FY 2018, 198,460 H–1B petitions were 

submitted in the first five days that cap-subject 

petitions could be submitted, a 16 percent decline 

in H–1B cap-subject petitions from FY 2017. 

Though the receipt of H–1B cap-subject petitions 

fell in FY 2018, the petitions received still far 

exceeded the numerical limitations, continuing a 

trend of excess demand since FY 2011. For H–1B 

filing petitions data prior to FY 2014, see U.S. 

Department of Homeland Security, U.S. Citizenship 

and Immigration Services, Reports and Studies, 

https://www.uscis.gov/tools/reports-studies/reportsand-studies (last visited Sept. 2, 2020). 165 DHS estimates the costs and benefits of this 

final rule using the newly published U.S. 

Citizenship and Immigration Services Fee Schedule 

and Changes to Certain Other Immigration Benefit 

Request Requirements, final rule (Fee Schedule 

Final Rule), and associated form changes, as the 

baseline. 85 FR 46788 (Aug. 3, 2020). The Fee 

Schedule Final Rule was scheduled to go into effect 

on October 2, 2020. On September 29, 2020, the 

U.S. District Court for the Northern District of 

California issued a nationwide injunction, which 

prevents DHS from implementing the Fee Schedule 

Final Rule. See Immigrant Legal Resource Center v. 

Wolf, No. 4:20-cv-5883 (N.D. Cal. Sept. 29, 2020). 

In addition, on October 8, 2020, DHS was also 

preliminarily enjoined from implementing and 

enforcing the Fee Schedule Final Rule by the U.S. 

District Court for the District of Columbia, 

including by adopting any form changes associated 

with the rule. See Northwest Immigrant Rights 

Project v. U.S. Citizenship and Immigration Servs., 

1:19-cv-03283–RDM (D.D.C. Oct. 8, 2020). DHS 

intends to vigorously defend these lawsuits and is 

not changing the baseline for this final rule as a 

result of the litigation. Should DHS not prevail in 

the Fee Schedule Final Rule litigation, this final 

rule may reflect overstated transfers, costs, and 

opportunity costs associated with the filing of the 

Form I–129. 

166See Fee Schedule Final Rule, 85 FR 46788. 

20,000 aliens who have earned a 

master’s or higher degree from a U.S. 

institution of higher education.154

Under the current regulation, all 

petitioners seeking to file an H–1B capsubject petition must first electronically 

submit a registration for each 

beneficiary on whose behalf they seek to 

file an H–1B cap-subject petition, unless 

USCIS suspends the registration 

requirement.155 USCIS monitors the 

number of H–1B registrations submitted 

during the announced registration 

period of at least 14 days and, at the 

conclusion of that period, if more 

registrations are submitted than 

projected as needed to reach the 

numerical allocations, randomly selects 

from among properly submitted 

registrations the number of registrations 

projected as needed to reach the H–1B 

numerical allocations.156 Under this 

random H–1B registration selection 

process, USCIS first selects registrations 

submitted on behalf of all beneficiaries, 

including those eligible for the 

advanced degree exemption. USCIS 

then selects from the remaining 

registrations a sufficient number 

projected as needed to reach the 

advanced degree exemption. A 

prospective petitioner whose 

registration is selected is notified of the 

selection and instructed that the 

petitioner is eligible to file an H–1B capsubject petition for the beneficiary 

named in the selected registration 

within a filing period that is at least 90 

days in duration and begins no earlier 

than 6 months ahead of the actual date 

of need (commonly referred to as the 

employment start date).157 When 

registration is required, a petitioner 

seeking to file an H–1B cap-subject 

petition is not eligible to file the petition 

unless the petition is based on a valid, 

selected registration for the beneficiary 

named in the petition.158

Prior to filing an H–1B petition, the 

employer is required to obtain a 

certified Labor Condition Application 

(LCA) from the Department of Labor 

(DOL).159 The LCA form collects 

information about the employer and the 

occupation for the H–1B worker(s). The 

LCA requires certain attestations from 

the employer, including, among others, 

that the employer will pay the H–1B 

worker(s) at least the required wage.160

This final rule amends DHS regulations 

concerning the selection of electronic 

registrations submitted by or on behalf 

of prospective petitioners seeking to file 

H–1B cap-subject petitions (or the 

selection of petitions, if the registration 

process is suspended), which includes 

petitions subject to the regular cap and 

those asserting eligibility for the 

advanced degree exemption, to allow for 

ranking and selection based on OES 

wage levels. When applicable, USCIS 

will rank and select the registrations 

received 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(s) of 

intended employment, beginning with 

OES wage level IV and proceeding in 

descending order with OES wage levels 

III, II, and I and below.161 For registrants 

relying on a private wage survey, if the 

proffered wage is less than the 

corresponding level I OES wage, the 

registrant will select the ‘‘Wage Level I 

and below’’ box on the registration 

form.162 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 wage 

level a sufficient number of registrations 

needed to reach the applicable 

numerical limitation.163

3. Historic Population 

The historic population consists of 

petitioners who file on behalf of H–1B 

cap-subject beneficiaries (in other 

words, beneficiaries who are subject to 

the annual numerical limitation, 

including those eligible for the 

advanced degree exemption). DHS uses 

the 5-year average of H–1B cap-subject 

petitions received for FYs 2016 to 2020 

(211,797) as the historic estimate of 

H–1B cap-subject petitions that were 

submitted annually.164 Prior to 

publication of U.S. Citizenship and 

Immigration Services Fee Schedule and 

Changes to Certain Other Immigration 

Benefit Request Requirements (Fee 

Schedule Final Rule),165 H–1B 

petitioners submit Form I–129 with 

applicable supplements for H–1B 

petitions. Through the Fee Schedule 

Final Rule, DHS created a new Form I– 

129 for H–1B petitioners.166 Form I–129 

does not include separate supplements 

as relevant data collection fields have 

been incorporated into Form I–129. DHS 

assumes that the number of petitioners 

who previously filled out the Form I– 

129 and H–1B supplements is the same 

as the number of petitioners who will 

complete the new Form I–129H1. 

TABLE 3—H–1B CAP-SUBJECT PETITIONS SUBMITTED TO USCIS FOR FY 2016—FY 2020 

Fiscal year 

Total number of 

H-1B cap-subject 

petitions submitted 

Total number of 

H-1B 

petitions 

selected 

Number of 

petitions filed with 

Form G–28 

2016 ........................................................................................................................... 232,973 97,711 72,292 

2017 ........................................................................................................................... 236,444 95,818 68,743 

2018 ........................................................................................................................... 198,460 95,923 78,900 


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167Calculation: 81,165 Forms G–28/101,822 Form 

I–129 petitions = 79.7 percent 168See H–1B Registration Final Rule, 84 FR 888. 

169See U.S. Department of Labor, Bureau of Labor 

Statistics, Occupational Employment Statistics, 

May 2019 National Occupational Employment and 

Wage Estimates-National, SOC 13–1071—Human 

Resources Specialist and SOC 23–1011—Lawyers, 

https://www.bls.gov/oes/2019/may/oes_nat.htm 

(last visited Sept. 2, 2020). 

170The benefits-to-wage multiplier is calculated 

as follows: ($37.10 Total Employee Compensation 

per hour) ÷ ($25.47 Wages and Salaries per hour) 

= 1.457 = 1.46 (rounded). See U.S. Department of 

Labor, Bureau of Labor Statistics, Economic News 

Release, Employer Cost for Employee Compensation 

(December 2019), Table 1. Employer Costs for 

Employee Compensation by ownership (Dec. 2019), 

https://www.bls.gov/news.release/archives/ecec_

03192020.pdf (last visited Sept. 2, 2020). 

171Calculation of the weighted mean hourly wage 

for HR specialists: $32.58 per hour × 1.46 = 

$47.5668 = $47.57 (rounded) per hour. 

172Calculation of weighted mean hourly wage for 

in-house lawyers: $102.00 average hourly total rate 

of compensation for in-house lawyer = $69.86 

average hourly wage rate for lawyer (in-house) × 

1.46 benefits-to-wage multiplier. 

173 DHS uses the terms ‘‘in-house lawyer’’ and 

‘‘outsourced lawyer’’ to differentiate between the 

types of lawyers that may file Form I–129 on behalf 

of an employer petitioning for an H–1B beneficiary. 

174Calculation of weighted mean hourly wage for 

outside counsel: $174.65 average hourly total rate 

of compensation for outsourced lawyer = $69.86 

average hourly wage rate for lawyer (in-house) × 2.5 

conversion multiplier. DHS uses a conversion 

multiplier of 2.5 to estimate the average hourly 

wage rate for outsourced lawyer based on the 

hourly wage rate for an in-house lawyer. DHS has 

used this conversion multiplier in various previous 

rulemakings. The DHS analysis in Exercise of TimeLimited Authority to Increase the Fiscal Year 2018 

Numerical Limitation for the H–2B Temporary 

Nonagricultural Worker Program, 83 FR 24905 (May 

31, 2018), used a multiplier of 2.5 to convert inhouse attorney wages to the cost of outsourced 

attorney wages. 

TABLE 3—H–1B CAP-SUBJECT PETITIONS SUBMITTED TO USCIS FOR FY 2016—FY 2020—Continued 

Fiscal year 

Total number of 

H-1B cap-subject 

petitions submitted 

Total number of 

H-1B 

petitions 

selected 

Number of 

petitions filed with 

Form G–28 

2019 ........................................................................................................................... 190,098 110,376 93,495 

2020 ........................................................................................................................... 201,011 109,283 92,396 

Total .................................................................................................................... 1,058,986 509,111 405,826 

5-year average ................................................................................................... 211,797 101,822 81,165 

Source: Total Number of H–1B Cap-Subject Petitions Submitted FYs 2016–2020, USCIS Service Center Operations (SCOPS), June 2019.

Total Number of Selected Petitions data, USCIS Office of Performance and Qualify (OPQ), Performance Analysis and External Reporting 

(PAER), July 2020. 

Table 3 also shows historical Form 

G–28 filings by attorneys or accredited 

representatives accompanying selected 

H–1B cap-subject petitions. DHS notes 

that these forms are not mutually 

exclusive. Based on the 5-year average, 

DHS estimates 79.7 percent 167 of 

selected petitions will be filed with a 

Form G–28. Table 3 does not include 

data for FY 2021 as the registration 

requirement was first implemented for 

the FY 2021 H–1B cap selection process, 

and petition submission was ongoing at 

the time of this analysis. 

The H–1B selection process changed 

significantly after the publication of the 

H–1B Registration Final Rule.168 That 

rule established a mandatory electronic 

registration requirement that requires 

petitioners seeking to file cap-subject 

H–1B petitions, including those eligible 

for the advanced degree exemption, to 

first electronically register with USCIS 

during a designated registration period. 

That rule also reversed the order by 

which USCIS counts H–1B registrations 

(or petitions, for any year in which the 

registration requirement is suspended) 

toward the number projected to meet 

the H–1B numerical allocations, such 

that USCIS first selects registrations 

submitted on behalf of all beneficiaries, 

including those eligible for the 

advanced degree exemption. USCIS 

then selects from the remaining 

registrations a sufficient number 

projected as needed to reach the 

advanced degree exemption. The 

registration requirement was first 

implemented for the FY 2021 H–1B cap. 

During the initial registration period for 

the FY 2021 H–1B cap selection process, 

DHS received 274,237 registrations. 

4. Cost-Benefit Analysis 

Through these changes, petitioners 

will incur costs associated with 

additional time burden in completing 

the registration process and, if selected 

for filing, the petition process. In this 

analysis, DHS estimates the opportunity 

cost of time for these occupations using 

average hourly wage rates of $32.58 for 

HR specialists and $69.86 for 

lawyers.169 However, average hourly 

wage rates do not account for worker 

benefits such as paid leave, insurance, 

and retirement. DHS accounts for 

worker benefits when estimating the 

opportunity cost of time by calculating 

a benefits-to-wage multiplier using the 

most recent DOL, BLS report detailing 

average compensation for all civilian 

workers in major occupational groups 

and industries. DHS estimates the 

benefits-to-wage multiplier is 1.46.170

For purposes of this final rule, DHS 

calculates the average total rate of 

compensation as $47.57 per hour for an 

HR specialist, where the average hourly 

wage is $32.58 per hour worked and 

average benefits are $14.99 per hour.171

Additionally, DHS calculates the 

average total rate of compensation as 

$102.00 per hour for an in-house 

lawyer, where the average hourly wage 

is $69.86 per hour worked and average 

benefits are $32.14 per hour.172

Moreover, DHS recognizes that a firm 

may choose, but is not required, to 

outsource the preparation and 

submission of registrations and filing of 

H–1B petitions to outsourced 

lawyers.173 Therefore, DHS calculates 

the average total rate of compensation as 

$174.65, which is the average hourly 

U.S. wage rate for lawyers multiplied by 

2.5 to approximate an hourly billing rate 

for an outsourced lawyer.174 Table 4 

summarizes the compensation rates 

used in this analysis. 

TABLE 4—SUMMARY OF ESTIMATED

WAGES FOR FORM I–129 FILERS BY

TYPE OF FILER

Hourly 

compensation 

rate 

Human Resources (HR) 

Specialist ........................... $47.57 

In-house lawyer .................... 102.00 

Outsourced lawyer ................ 174.65 

Source: USCIS analysis. 

a. Costs and Cost Savings of Regulatory 

Changes to Petitioners 

i. Methodology Based on Historic FYs 

2019–2020 

This final rule primarily will change 

the manner in which USCIS selects 

H–1B registrations (or H–1B petitions 

for any year in which the registration 

requirement is suspended), by first 


tkelley on DSKBCP9HB2PROD with RULES3
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175See H–1B Registration Final Rule, 84 FR 888. 

176The total number of registrations for the 

advanced degree exemption and the regular cap do 

not equal the total 274,237 submitted registrations 

because the remaining 5,043 submitted registrations 

were invalid (e.g., as prohibited duplicate 

registrations). 

177U.S. Department of Homeland Security, U.S. 

Citizenship and Immigration Services, Office of 

Policy and Strategy, Policy Research Division 

(PRD), Form I–129 H–1B, FY 2021 Data, Claims 3 

(Aug. 31, 2020) & USCIS Analysis. 

178Calculation: 109,830 2-year average of 

Petitions Randomly Selected in FYs 2019–2020/ 

195,555 2- year average of Total Number of H–1B 

Cap-Subject Petitions Filed in FYs 2019–2020 = 

56% 

179USCIS created the tool to link USCIS H–1B 

data to the DOL data for FY 2019. 

180U.S. Department of Labor, Bureau of Labor 

Statistics, Occupational Employment Statistics, 

Frequently Asked Questions, https://www.bls.gov/ 

oes/oes_ques.htm (last visited Sept. 2, 2020) (Can 

OES data be used to compare changes in 

employment or wages over time? Although the OES 

survey methodology is designed to create detailed 

cross-sectional employment and wage estimates for 

the U.S., States, metropolitan and nonmetropolitan 

areas, across industry and by industry, it is less 

useful for comparisons of two or more points in 

time. Challenges in using OES data as a time series 

include changes in the occupational, industrial, and 

geographical classification systems, changes in the 

way data are collected, changes in the survey 

reference period, and changes in mean wage 

estimation methodology, as well as permanent 

features of the methodology). 

181U.S. Department of Labor, Bureau of Labor 

Statistics, Standard Occupational Classification 

https://www.bls.gov/soc/2018/home.htm (last 

visited Oct. 27, 2020). 

182U.S. Department of Labor, Bureau of Labor 

Statistics, Occupational Employment Statistics, 

Implementing the 2018 SOC in the OES program— 

May 2019 and May 2020 Hybrid Occupations, 

https://www.bls.gov/oes/soc_2018.htm (last visited 

Sept. 2, 2020). 

selecting registrations generally based 

on the highest OES wage level that the 

proffered wage equals or exceeds for the 

relevant SOC code and area(s) of 

intended employment. In April 2019, 

DHS added an electronic registration 

requirement for petitioners seeking to 

file H–1B petitions on behalf of capsubject aliens.175 Under the current 

regulation, all petitioners seeking to file 

an H–1B cap-subject petition must first 

electronically submit a registration for 

each beneficiary on whose behalf they 

seek to file an H–1B cap-subject 

petition, unless the registration 

requirement is suspended. If the 

registration is selected, the petitioner is 

eligible to file an H–1B cap-subject 

petition for the beneficiary named in the 

selected registration during the 

associated filing period. The registration 

requirement was suspended for the FY 

2020 H–1B cap and first implemented 

for the FY 2021 H–1B cap. The initial 

H–1B registration period for the FY 

2021 H–1B cap was March 1, 2020, 

through March 20, 2020. A total of 

274,237 registrations were submitted 

during the initial registration period, of 

which 123,244 176 registrations were for 

beneficiaries eligible for the advanced 

degree exemption and 145,950 were for 

beneficiaries under the regular cap.177

Prior to implementing the registration 

requirement, USCIS administered the 

H–1B cap by projecting the number of 

petitions needed to reach the numerical 

allocations. H–1B cap-subject petitions 

were randomly selected when the 

number of petitions received on the 

final receipt date exceeded the number 

projected as needed to reach the 

numerical allocations. All petitions 

eligible for the advanced degree 

exemption had an equal chance of being 

selected toward the advanced degree 

exemption, and all remaining petitions 

had an equal chance of being selected 

toward the regular cap. In FY 2019, 

USCIS first selected petitions toward the 

number of petitions projected as needed 

to reach the advanced degree 

exemption. If the petition was not 

selected under the advanced degree 

exemption, those cases then were added 

back to the pool and had a second 

chance of selection under the regular 

cap. In FY 2020, the selection order was 

reversed, such that USCIS first selected 

petitions toward the number projected 

as needed to reach the regular cap from 

among all petitions received. USCIS 

then selected toward the number of 

petitions projected as needed to reach 

the advanced degree exemption from 

among those petitions eligible for the 

advanced degree exemption, but that 

were not selected toward the number 

projected as needed to reach the regular 

cap. 

Table 5 shows the number of petitions 

submitted and selected in FYs 2019 and 

2020. It also displays the approximated 

2-year averages of the petitions that 

were submitted and selected for the H– 

1B regular cap or advanced degree 

exemption. On average, DHS selected 56 

percent 178 of the H–1B cap-subject 

petitions submitted, with 82,900 toward 

the regular cap and 26,930 toward the 

advanced degree exemption. 

TABLE 5—H–1B CAP-SUBJECT PETITIONS SUBMITTED TO USCIS, FOR FY 2019–FY 2020 

Fiscal year 

Total number of 

H–1B cap-subject 

petitions submitted 

Total petitions 

selected Regular cap Advanced degree exemption 

2019 ......................................................................................... 190,098 110,376 82,956 27,420 

2020 ......................................................................................... 201,011 109,283 82,843 26,440 

Total .................................................................................. 391,109 219,659 165,799 53,860 

2-Year Average ................................................................ 195,555 109,830 82,900 26,930 

Source: USCIS, Office of Policy and Strategy, Policy Research Division (PRD), Claims 3. July 21, 2020 & USCIS Analysis 

DHS does not have data on the OES 

wage levels for selected petitions prior 

to FY 2019.179 While there are some 

challenges to using OES wage data as a 

timeseries, DHS uses the wage data to 

provide some insight.180 Table 6 shows 

the petitions that were selected for FYs 

2019 and 2020, categorized by OES 

wage level. The main difference 

between the FY 2019 and FY 2020 data 

sets is that there are more petitions 

classified as not applicable (N/A) in the 

FY 2019 data compared to the FY 2020 

data. Since DOL’s Standard 

Occupational Classification (SOC) 181

structure was modified in 2018, some 

petitions were categorized as N/A in FY 

2019. In 2019, DOL started to use a 

hybrid OES 182 occupational structure 

for classifying the petitions for FY 2020. 

Another data limitation was that some 

of the FY 2020 data was incomplete 

with missing fields, and could not be 

classified into the specific wage levels; 

therefore, the petitions were categorized 

as N/A. DHS expects each registrant that 

is classified as N/A will be able to 

identify the appropriate SOC code for 

the proffered position because all 

petitioners are required to identify the 

appropriate SOC code for the proffered 

position on the LCA, even when there 

is no applicable wage level on the LCA. 

Using the SOC code and the abovementioned DOL guidance, all registrants 

will be able to determine the 

appropriate OES wage level for 

purposes of completing the registration, 

regardless of whether they specify an 


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183Calculation: 195,555 2-year average of Total 

Number of H–1B Cap-Subject Petitions received in 

FYs 2019–2020 ¥109,830 2-year average of 

Petitions Randomly Selected in FYs 2019–2020 = 

85,725 

184FY 2021 data pertains to the registrations 

received during FY 2020 for the FY 2021 H–1B cap 

season. 185See 8 CFR 214.2(h)(8)(iii)(A). 186See 8 CFR 214.2(h)(8)(iii)(D). 187See 8 CFR 214.2(h)(8)(iii)(A)(5). 188See 8 CFR 214.2(h)(8)(iii)(A)(6). 

189 DHS uses FY 2021 H–1B cap selection data as 

the population to estimate certain costs for this final 

rule because FY 2021 is the first year that 

registration was required. As explained above, DHS 

added the registration requirement on April 19, 

2019, but the registration requirement was 

suspended for the FY 2020 H–1B cap. 

OES wage level or utilize the OES 

program as the prevailing wage source 

on an LCA. While there are limitations 

to the data used, DHS believes that the 

estimates are helpful to see the current 

wage levels and estimate the future 

populations in each wage level. 

TABLE 6—SELECTED PETITIONS BY WAGE LEVEL FY 2019–FY 2020 

Level I Level II Level III Level IV N/A Total 

Advanced Degree Exemption: 

FY 2019 ................................................... 7,363 13,895 2,016 553 3,593 27,420 

FY 2020 ................................................... 7,453 14,467 2,311 694 1,515 26,440 

Total ......................................................... 14,816 28,362 4,327 1,247 5,108 53,860 

2-Year Average ................................. 7,408 14,181 2,164 623 2,554 26,930 

Regular Cap: ........................ ........................ ........................ ........................ ........................ ........................

FY 2019 ................................................... 18,557 42,621 8,447 3,540 9,791 82,956 

FY 2020 ................................................... 19,232 46,439 8,796 3,677 4,699 82,843 

Total .................................................. 37,789 89,060 17,243 7,217 14,490 165,799 

2-Year Average ................................. 18,895 44,530 8,622 3,608 7,245 82,900 

Source: USCIS, Office of Policy and Strategy, Policy Research Division (PRD), Claims 3. July 21, 2020 & USCIS Analysis. 

DHS has OES wage level data only on 

the petitions that were selected toward 

the numerical allocations and does not 

have the wage level break down for the 

85,725 183 (44 percent) of petitions that 

were not selected since those petitions 

were returned to petitioners without 

entering data into DHS databases. Due 

to data limitations, DHS estimated the 

wage level break down for the 44 

percent of petitions that were not 

selected because wage levels vary 

significantly between occupations and 

localities. Table 7 shows the 2-year 

approximated average of H–1B capsubject petitions that were selected, 

separated by OES wage level, and 

percentages of accepted petitions by 

each wage category. The wage category 

with the most petitions, as estimated, is 

OES wage level II. 

TABLE 7—CURRENT ESTIMATED NUMBER OF SELECTED PETITIONS BY WAGE LEVEL AND CAP TYPE FY 2019–FY 2020 

Level 

Regular cap Advanced degree exemption 

Selected % of total Selected % of total 

Level I & N/A ................................................................................................... 26,140 31.50 9,962 36.99 

Level II ............................................................................................................. 44,530 53.70 14,181 52.66 

Level III ............................................................................................................ 8,622 10.40 2,164 8.04 

Level IV ............................................................................................................ 3,608 4.40 623 2.31 

Total .......................................................................................................... 82,900 100 26,930 100 

Source: USCIS, Office of Policy and Strategy, Policy Research Division (PRD), Claims 3. July 21, 2020 & USCIS Analysis 

ii. FY 2021 Data 184

The population affected by this final 

rule consists of prospective petitioners 

seeking to file H–1B cap-subject 

petitions, including those eligible for 

the advanced degree exemption. DHS 

regulations require all petitioners 

seeking to file H–1B cap-subject 

petitions to first electronically submit a 

registration for each beneficiary on 

whose behalf they seek to file an H–1B 

cap-subject petition, unless USCIS 

suspends the registration 

requirement.185 A prospective petitioner 

whose registration is selected is eligible 

to file an H–1B cap-subject petition for 

the beneficiary named in the selected 

registration during the associated filing 

period.186 Under the current H–1B 

registration selection process, USCIS 

first randomly selects registrations 

submitted on behalf of all beneficiaries, 

including those eligible for the 

advanced degree exemption.187 USCIS 

then randomly selects from the 

remaining registrations a sufficient 

number projected as needed to reach the 

advanced degree exemption.188 Prior to 

the implementation of the H–1B 

registration requirement for the FY 2021 

H–1B cap selection process, petitioners 

submitted an annual average of 211,797 

cap-subject H–1B petitions over FYs 

2016 through 2020. The number of 

registrations submitted for the FY 2021 

H–1B cap selection process, however, 

was 274,237. Because the number of 

registrations submitted for the FY 2021 

H–1B cap selection process was 

significantly higher than the number of 

petitions submitted in prior years, DHS 

will use the total number of registrations 

submitted for the FY 2021 H–1B cap 

selection process as the population to 

estimate certain costs for this final 

rule.189 There were many factors that 

led to an increased number of 

registrations for FY 2021; one possible 

factor is that the cost and burden to 

submit the registration is less than the 


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190Calculation: 81,165 Forms G–28/101,822 Form 

I–129 petitions = 79.7 percent = 80 percent 

(rounded). 

191Calculation: 274,237 * 79.7 percent = 218,567 

Form G–28. 

192 8 CFR 292.1(a)(4) (defining an accredited 

representative as ‘‘a person representing an 

organization described in § 292.2 of this chapter 

who has been accredited by the Board’’). 

193Calculation: 81,165 petitions filed with Form 

G–28/101,822 average petitions selected = 79.7 

percent petitions completed and filed by a lawyer 

or other accredited representative (hereafter lawyer) 

194 DHS uses data from the longitudinal study 

conducted in 2003 and 2007 on legal career and 

placement of lawyers, which found that 18.6, 55, 

and 26.2 percent of lawyers practice law at 

government (federal and local) institutions, private 

law firms, and private businesses (as inside 

counsel), respectively. See Dinovitzer et al, After 

the JD II: Second Results from a National Study of 

Legal Careers, The American Bar Foundation and 

the National Association for Law Placemen (NALP) 

Foundation for Law Career Research and Education 

(2009), Table 3.1, p. 27, https://www.law.du.edu/ 

documents/directory/publications/sterling/ 

AJD2.pdf. Among those working in private law 

firms and private businesses (54 and 26 percent, 

respectively), DHS estimates that, while 67.7 

percent of lawyers practice law in private law firms, 

the remaining 32.3 percent practice in private 

businesses (54 percent + 25.7 percent = 79.7 

percent, 67.7 percent = 54/79.7*100, 32.2 percent 

= 25.7/79.7*100). Because 79.7 percent of the H–1B 

petitions are filed by lawyers or accredited 

representatives, DHS multiplies 79.7 percent by 

32.3 and 67.7 percent to estimate the proportion of 

petitions filed by in-house lawyers (working in 

private businesses) and outsourced lawyer (working 

in private law firms), respectively. 

26 (rounded) percent of petitions filed by inhouse lawyers = 80 percent of petitions filed by 

lawyers or accredited representatives × 32.3 percent 

of lawyers work in private businesses. 

54 (rounded) percent of petitions filed by 

outsourced lawyer = 80 percent of petitions filed by 

lawyers or accredited representatives × 67.7 percent 

of lawyers work in private law firms. 

cost and burden to submit complete 

Form I–129 packages. 

For the FY 2021 H–1B cap selection 

process, 106,100 registrations initially 

were selected to submit a petition. 

Prospective petitioners with selected 

registrations only were eligible to file 

H–1B petitions based on the selected 

registrations during a 90-day filing 

window. USCIS did not receive enough 

H–1B petitions during the initial filing 

period to meet the number of petitions 

projected as needed to reach the H–1B 

numerical allocations, so the selection 

process was run again in August 2020. 

An additional 18,315 registrations were 

selected in August 2020 for a total of 

124,415 selected registrations for FY 

2021. While the current number of 

registrations selected toward the FY 

2021 numerical allocations is 124,415, 

DHS estimates certain costs for this final 

rule using the number of registrations 

initially selected (106,100) as the best 

estimate of the number of petitions 

needed to reach the numerical 

allocations. 

TABLE 8—H–1B CAP-SUBJECT REGISTRATIONS SUBMITTED, FOR FY 2021 

Fiscal year 

Total number of 

H–1B registrations 

submitted 

Round 1 number of 

H–1B registrations 

selected 

Round 2 number of 

H–1B registrations 

selected 

Total number of 

H–1B registrations 

selected * 

Number of 

registrations 

submitted with 

form G–28 ** 

2021 ............... 274,237 106,100 18,315 124,415 N/A 

Total ........ 274,237 106,100 18,315 124,415 N/A 

Source: USCIS, Office of Policy and Strategy, Policy Research Division (PRD), Claims 3. August 31, 2020 USCIS Analysis. 

* Note: USCIS administered the selection process twice because an insufficient number of petitions were filed following initial registration selection to reach the number of petitions projected as needed to reach the numerical allocations. USCIS has not finished processing H–1B capsubject petitions for FY 2021. 

** Note: Complete data is still unavailable for FY 2021. USCIS used FYs 2019–2020 from Table 3 to estimate the percentage of submitted G– 

28s below. 

Table 3 shows historical Form G–28 

filings by attorneys or accredited 

representatives accompanying selected 

H–1B cap-subject petitions. DHS notes 

that these forms are not mutually 

exclusive. Based on the historical 5-year 

average from earlier in this analysis, 

DHS estimates 79.7 percent 190 of 

selected registrations will include Form 

G–28. DHS applies those percentages to 

the number of total registrations and 

estimates 218,567 191 Form G–28 were 

submitted with total registrations 

received. DHS uses the total 

registrations received for the FY 2021 

H–1B cap selection process (274,237) as 

the estimate of registrations that will be 

received annually. 

Additionally, DHS assumes that 

petitioners may use human resources 

(HR) specialists (or entities that provide 

equivalent services) (hereafter HR 

specialist) or use lawyers or accredited 

representatives 192 to complete and file 

H–1B petitions. A lawyer or accredited 

representative appearing before DHS 

must file Form G–28 to establish their 

eligibility and authorization to represent 

a client (applicant, petitioner, requestor, 

beneficiary or derivative, or respondent) 

in an immigration matter before DHS. 

DHS estimates that approximately 80 

percent 193 of H–1B petitions typically 

will be completed and filed by a lawyer 

or other accredited representative 

(hereafter lawyer). DHS assumes the 

remaining 20 percent of H–1B petitions 

will be completed and filed by HR 

specialists. 

Petitioners who use lawyers to 

complete and file H–1B petitions may 

either use an in-house lawyer or hire an 

outsourced lawyer. Of the total number 

of H–1B petitions filed in FY 2021, DHS 

estimates that 26 percent were filed by 

in-house lawyers, while the remaining 

54 percent were filed by outsourced 

lawyers.194

TABLE 9—SUMMARY OF ESTIMATED AVERAGE NUMBER OF PETITIONS/REGISTRATIONS SUBMITTED ANNUALLY BY TYPE OF

FILER

Affected population Estimated average 

population affected 

Number of petitions/ 

registrations 

submitted by 

HR specialists 

Number of petitions/ 

registrations 

submitted by 

in-house lawyers 

Number of petitions/ 

registrations 

submitted by 

outsourced lawyers 

A B = A × 20% C = A × 26% D = A × 54% 

Estimated number of H–1B registrations submitted annually ............................................. 274,237 54,847 71,302 148,088 


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195Calculation: 106,100 Registrations Randomly 

Selected/274,237 Total Number of H–1B CapSubject registrations Filed in 2020 = 39%. 

TABLE 9—SUMMARY OF ESTIMATED AVERAGE NUMBER OF PETITIONS/REGISTRATIONS SUBMITTED ANNUALLY BY TYPE OF

FILER—Continued 

Affected population Estimated average 

population affected 

Number of petitions/ 

registrations 

submitted by 

HR specialists 

Number of petitions/ 

registrations 

submitted by 

in-house lawyers 

Number of petitions/ 

registrations 

submitted by 

outsourced lawyers 

A B = A × 20% C = A × 26% D = A × 54% 

Estimated number of H–1B registrations selected to file H–1B cap petitions annually ... 106,100 21,220 27,586 57,294 

Source: USCIS analysis. 

Based on the total estimated number 

of affected populations shown in Table 

9, DHS further estimates the number of 

entities that will be affected by each 

requirement of this final rule to estimate 

the costs arising from the regulatory 

changes in the cost-benefit analysis 

section. Additionally, DHS uses the 

same proportion of HR specialists, inhouse lawyers, and outsourced lawyers 

(20, 26, and 54 percent, respectively) to 

estimate the population that will be 

affected by the various requirements of 

this final rule. 

iii. Unquantified Costs & Benefits 

Given that the demand for H–1B capsubject visas, including those filed for 

the advanced degree exemption, 

frequently has exceeded the annual H– 

1B numerical allocations, this final rule 

will increase the chance of selection for 

registrations (or petitions, if registration 

were suspended) seeking to employ 

beneficiaries at level IV or level III 

wages. DHS believes this incentive for 

petitioners to offer wages that maximize 

their probability of selection is 

necessary to address the risk that greater 

numbers of U.S. employers could rely 

on the program to access relatively 

lower-cost labor, precluding other 

employers from benefitting from the H– 

1B program’s intended purpose of 

providing high-skilled nonimmigrant 

labor to supplement domestic labor. 

This final rule could result in higher 

proffered wages or a reduction in the 

downward pressure on wages in 

industries and occupations with 

concentrations of relatively lower-paid 

H–1B workers. Additionally, this final 

rule may lead to an increase in 

employment opportunities for 

unemployed or underemployed U.S. 

workers seeking employment in 

positions otherwise offered to H–1B 

cap-subject beneficiaries at wage levels 

corresponding to lower wage positions. 

Employers that offer H–1B workers 

wages that correspond with level IV or 

level III OES wages will have higher 

chances of selection. 

For the FY 2021 H–1B cap selection 

process, USCIS initially selected 

106,100 (39 percent) 195 of H–1B 

registrations submitted toward the 

numerical allocations; of those 80,600 

were selected toward the number 

projected as needed to reach the regular 

cap, and 25,500 were selected toward 

the number projected as needed to reach 

the advanced degree exemption. The 

total number of H–1B registrations 

submitted was 274,237; however, 5,043 

were invalid. Of the 269,194 valid 

registrations, 145,950 were submitted 

toward the regular cap and 123,244 

were eligible for selection under the 

advanced degree exemption. 

TABLE 10—H–1B CAP-SUBJECT REGISTRATIONS SUBMITTED FOR FY 2021 

Fiscal year 

Total number of valid 

H–1B registrations 

submitted 

Regular cap Advanced degree 

exemption 

2021 ............................................................................................. 269,194 145,950 123,244 

Total ...................................................................................... 269,194 145,950 123,244 

Source: USCIS, Office of Policy and Strategy, Policy Research Division (PRD), Claims 3. August 31, 2020 & USCIS & Analysis. 

* Note: The total number of registrations in this table does not equal 274,237 because 5,043 of the registrations were invalid. 

DHS estimated the wage level 

distribution for FY 2021 based on the 

average distribution observed in FYs 

2019 and 2020. At the time of analysis, 

the wage level data was unavailable for 

FY 2021 because the petition filing 

process was ongoing. Table 11 displays 

the historic 2-year (FY 2019 and FY 

2020) approximated average of H–1B 

cap-subject petitions that were selected, 

separated by OES wage level, and 

percentages of selected petitions by each 

wage category. 

TABLE 11—HISTORIC NUMBER OF SELECTED PETITIONS BY WAGE LEVEL AND CAP TYPE

Level 

Regular cap Advanced degree exemption 

Selected % of total Selected % of total 

Level I & Below ................................................................................................ 26,140 31.50 9,962 36.99 

Level II ............................................................................................................. 44,530 53.70 14,181 52.66 

Level III ............................................................................................................ 8,622 10.40 2,164 8.04 


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TABLE 11—HISTORIC NUMBER OF SELECTED PETITIONS BY WAGE LEVEL AND CAP TYPE—Continued 

Level 

Regular cap Advanced degree exemption 

Selected % of total Selected % of total 

Level IV ............................................................................................................ 3,608 4.40 623 2.31 

Total .......................................................................................................... 82,900 100 26,930 100 

Source: USCIS, Office of Policy and Strategy, Policy Research Division (PRD), Claims 3. July 21, 2020 & USCIS Analysis. 

* Note: Totals are based on 2-year averages of petitions randomly selected in FYs 2019–2020, Table 11 is replicated from Table 7. 

DHS assumes that FY 2021 wage level 

distribution of registrations will equal 

the wage level distribution observed in 

FYs 2019 through 2020 data. DHS 

multiplied the percentage of selected 

petitions by level from Table 11 to 

estimate the breakdown of registrations 

by wage level. For example, DHS 

multiplied 145,950 by 4.4 percent to 

estimate that a total of 6,422 

registrations would have been 

categorized as wage level IV under the 

regular cap. 

TABLE 12—CURRENT ESTIMATED NUMBER OF REGISTRATIONS BY WAGE LEVEL AND CAP TYPE

Level 

Regular cap Advanced degree exemption 

Estimated 

registrations 

% of 

registrations 

Estimated 

registrations 

% of 

registrations 

Level I & Below ................................................................................................ 45,974 31.50 45,588 36.99 

Level II ............................................................................................................. 78,375 53.70 64,900 52.66 

Level III ............................................................................................................ 15,179 10.40 9,909 8.04 

Level IV ............................................................................................................ 6,422 4.40 2,847 2.31 

Total .......................................................................................................... 145,950 100 123,244 100 

Source: USCIS, Office of Policy and Strategy, Policy Research Division (PRD), Claims 3. August 31, 2020 & USCIS Analysis 

* Note: Totals are based on FY 2021 data 

This final rule will change the H–1B 

cap selection process, but will leave in 

place selecting first toward the regular 

cap and second toward the advanced 

degree exemption. USCIS now will rank 

and select the registrations received (or 

petitions, as applicable) 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 and below. As a result 

of the approximated 2-year average from 

above, DHS displays the projected 

selection percentages for registrations 

under the regular cap and advanced 

degree exemption in Table 13. With the 

revised selection method based on 

corresponding OES wage level and 

ranking, the approximated average 

indicates that all registrations with a 

proffered wage that corresponds to OES 

wage level IV or level III will be selected 

and 58,999, or 75 percent, of the 

registrations with a proffered wage that 

corresponds to OES wage level II will be 

selected toward the regular cap 

projections. None of the registrations 

with a proffered wage that corresponds 

to OES wage level I or below will be 

selected toward the regular cap 

projections. For the advanced degree 

exemption, DHS estimates all 

registrations with a proffered wage that 

corresponds to OES wage levels IV and 

III will be selected and 12,744, or 20 

percent, of the registrations with a 

proffered wage that corresponds to OES 

wage level II will be selected. DHS 

estimates that none of the registrations 

with a proffered wage that corresponds 

to OES wage level I or below will be 

selected. 

DHS is using the approximated 2-year 

average from above to illustrate the 

expected distribution of future selected 

registration percentages by 

corresponding wage level. However, 

DHS is unable to quantify the actual 

outcome because DHS cannot predict 

the actual number of registrations that 

will be received at each wage level 

because employers may change the 

number of registrations they choose to 

submit and the wages they offer in 

response to the changes in this rule. 

TABLE 13—NEW ESTIMATED NUMBER OF SELECTED REGISTRATIONS BY WAGE LEVEL AND CAP TYPE

Level 

Regular cap Advanced degree exemption 

Total 

registrations 

Selected 

registrations % Selected Total registrations 

Selected 

registrations % Selected 

Level I & Below ........................................ 45,974 0 0 45,588 0 0 

Level II ..................................................... 78,375 58,999 75 64,900 12,744 20 

Level III .................................................... 15,179 15,179 100 9,909 9,909 100 

Level IV .................................................... 6,422 6,422 100 2,847 2,847 100 

Total .................................................. 145,950 80,600 ........................ 123,244 25,500 ........................

Source: USCIS, Office of Policy and Strategy, Policy Research Division (PRD), Claims 3. August 31, 2020 & USCIS Analysis. 

* Note: Totals are based on FY 2021 data. 


tkelley on DSKBCP9HB2PROD with RULES3
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196 DOL uses wage levels to determine the 

prevailing wage based on the level of education, 

experience (including special skills and other 

requirements), or supervisory duties required for a 

position; however, USCIS would use wage levels to 

rank and select registrations (or petitions, as 

applicable) based on the rate of pay for the wage 

level that the proffered wage were to equal or 

exceed. More information about DOL wage level 

determinations can be found at U.S. Department of 

Labor, Employment and Training Administration, 

Prevailing Wage Determination Policy Guidance, 

Nonagricultural Immigration Programs (Revised 

Nov. 2009), https://www.dol.gov/sites/dolgov/files/ 

ETA/oflc/pdfs/NPWHC_Guidance_Revised_11_

2009.pdf; and at U.S. Department of Labor, Foreign 

Labor Certification Data Center, Online Wage 

Library, https://www.flcdatacenter.com/ (last 

visited Dec. 15, 2020). DHS acknowledges that 

varying wage levels correspond to varying skill 

levels. In analyzing the economic effects of this 

final rule, DHS recognizes that prospective 

petitioners may offer wages exceeding the wage 

levels associated with the skills required for given 

positions to increase their chances of selection 

under the ranked selection process. 

197Society for Human Resource Management 

(SHRM), 2016 Human Capital Benchmarking 

Report, at 16, https://www.shrm.org/hr-today/ 

trends-and-forecasting/research-and-surveys/ 

Documents/2016-Human-Capital-Report.pdf (last 

visited Oct. 21, 2020). The study was based on data 

collected from 2,048 randomly selected human 

resource professionals who participated in the 2016 

SHRM Human Capital Benchmarking Survey. The 

hiring cost is reported as $4,129 per worker in 2016 

dollars and converted to 2019 dollars in this 

analysis. The hiring cost includes third-party 

agency fees, advertising agency fees, job fairs, 

online job board fees, employee referrals, travel 

costs of applicants and staff, relocation costs, 

recruiter pay and benefits, and talent acquisition 

system costs. 

This final rule may primarily affect 

prospective petitioners seeking to file 

H–1B cap-subject petitions with a 

proffered wage that corresponds to OES 

wage level II, I, and below.196 As Table 

13 shows, this final rule is expected to 

result in a reduced likelihood that 

registrations for level II will be selected, 

as well as the likelihood that 

registrations for level I and below wages 

will not be selected. A prospective 

petitioner, however, could choose to 

increase the proffered wage, so that it 

corresponds to a higher wage level. 

Another possible effect is that 

employers will not fill vacant positions 

that would have been filled by H–1B 

workers. These employers may be 

unable to find qualified U.S. workers, or 

may leave those positions vacant 

because they cannot justify raising the 

wage to stand greater chances of 

selection in the H–1B cap selection 

process. That, in turn, could result in 

fewer registrations and H–1B capsubject petitions with a proffered wage 

that corresponds to OES wage level II 

and below. 

DHS acknowledges that this final rule 

might result in more registrations (or 

petitions, if registration is suspended) 

with a proffered wage that corresponds 

to level IV and level III OES wages for 

H–1B cap-subject beneficiaries. DHS 

believes a benefit of this final rule may 

be that some petitioners may choose to 

increase proffered wages for H–1B capsubject beneficiaries, so that the 

petitioners may have greater chances of 

selection. This change will, in turn, 

benefit H–1B beneficiaries who 

ultimately will receive a higher rate of 

pay than they otherwise would have in 

the absence of this rule. However, DHS 

is not able to estimate the magnitude of 

such benefits. DHS acknowledges the 

change in the selection procedure 

resulting from this final rule will create 

distributional effects and costs. DHS is 

unable to quantify the extent or 

determine the probability of H–1B 

petitioner behavioral changes. 

Therefore, DHS does not know the 

portion of overall impacts of this rule 

that will be benefits or costs. 

As a result of this final rule, costs will 

be borne by prospective petitioners that 

would hire lower wage level H–1B capsubject beneficiaries, but are unable to 

do so because of a reduced chance of 

selection in the H–1B selection process 

compared to the random lottery process. 

Such employers also may incur 

additional costs to find available 

replacement workers. DHS estimates 

costs incurred associated with loss of 

productivity from not being able to hire 

H–1B workers, or the need to search for 

and hire U.S. workers to replace H–1B 

workers. Although DHS does not have 

data to estimate the costs resulting from 

productivity loss for these employers, 

DHS provides an estimate of the search 

and hiring costs for the replacement 

workers. Accordingly, based on the 

result of the study conducted by the 

Society for Human Resource 

Management (SHRM) in 2016, DHS 

assumes that an entity whose H–1B 

petition is denied will incur an average 

cost of $4,398 per worker (in 2019 

dollars) 197 to search for and hire a U.S. 

worker in place of an H–1B worker 

during the period of this economic 

analysis. If petitioners cannot find 

suitable replacements for the labor H– 

1B cap-subject beneficiaries would have 

provided if selected and, ultimately, 

granted H–1B status, this final rule 

primarily will be a cost to these 

petitioners through lost productivity 

and profits. 

DHS also acknowledges that some 

petitioners might be impacted in terms 

of the employment, productivity loss, 

search and hire costs, and profits 

resulting from labor turnover. In cases 

where companies cannot find 

reasonable substitutes for the labor H– 

1B beneficiaries would have provided, 

affected petitioners also will lose profits 

from the lost productivity. In such 

cases, employers will incur opportunity 

costs by having to choose the next best 

alternative to fill the job prospective H– 

1B workers would have filled. There 

may be additional opportunity costs to 

employers such as search costs and 

training. 

Such possible disruptions to 

companies will depend on the 

interaction of a number of complex 

variables that constantly are in flux, 

including national, state, and local labor 

market conditions, economic and 

business factors, the type of occupations 

and skills involved, and the 

substitutability between H–1B workers 

and U.S. workers. These costs to 

petitioners are expected to be offset by 

increased productivity and reduced 

costs to find available workers for 

petitioners of higher wage level H–1B 

beneficiaries. 

DHS uses the compensation to H–1B 

employees as a measure of the overall 

impact of the provisions. While DHS 

expects wages paid to H–1B 

beneficiaries to be higher in light of this 

final rule, DHS is unable to quantify the 

benefit of increased compensation 

because not all of the wage increases 

will correspond with productivity 

increases. This final rule may indirectly 

benefit prospective petitioners 

submitting registrations with a proffered 

wage that corresponds to OES wage 

Level I and II registrations. The indirect 

benefit will be present during the 

COVID–19 pandemic and the ensuing 

economic recovery if the prospective 

petitioners are able to find replacement 

workers accepting a lower wage and 

factoring in the replacement cost of 

$4,398 per worker in the United States. 

Similarly, prospective petitioners that 

will be submitting registrations with a 

proffered wage that will correspond to 

OES wage level I and II and that 

substitute toward unemployed or 

underemployed individuals in the U.S. 

labor force will create an additional 

indirect benefit from this rule. This will 

benefit those in the U.S. labor force if 

petitioners decide to select a U.S. 

worker rather than a prevailing wage 

level I or II H–1B worker. DHS notes 

that, although the COVID–19 pandemic 

is widespread, the severity of its 

impacts varies by locality and industry, 

and there may be structural 

impediments to the national and local 

labor market. Accordingly, DHS cannot 

quantify with confidence, the net 

benefit of the redistribution of H–1B cap 

selections detailed in this analysis. 

DHS also is changing the filing 

procedures to allow USCIS to deny or 

revoke approval of a subsequent new or 

amended petition filed by the petitioner, 


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198 0.25 hours additional time to complete and 

file Form I–129 = (3.09 hours to complete and file 

the new Form I–129)¥(2.84 hours to complete and 

file the current Form I–129 and its supplements) 

199Agency Information Collection Activities; 

Revision of a Currently Approved Collection: H–1B 

Registration Tool, 84 FR 54159 (Oct. 9, 2019). 

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 is 

equivalent to a lower wage level, after 

listing a higher wage level on the 

registration (or petition, if registration is 

suspended) to increase the odds of 

selection. DHS is unable to quantify the 

cost of these changes to petitioners. 

iv. Costs of Filing Form I–129 Petitions 

DHS is amending Form I–129, which 

must be filed by petitioners on behalf of 

H–1B beneficiaries, to align with the 

regulatory changes DHS is making in 

this final rule. The changes to Form I– 

129 will result in an increased time 

burden to complete and submit the 

form. 

Absent the changes implemented 

through this final rule, the current 

estimated time burden to complete and 

file Form I–129 is 2.84 hours per 

petition. As a result of the changes in 

this final rule, DHS estimates the total 

time burden to complete and file Form 

I–129 will be 3.09 hours per petition, to 

account for the additional time 

petitioners will spend reviewing 

instructions, gathering the required 

documentation and information, 

completing the petition, preparing 

statements, attaching necessary 

documentation, and submitting the 

petition. DHS estimates the time burden 

will increase by a total of 15 minutes 

(0.25 hours) per petition for completing 

a Form I–129 petition.198

To estimate the additional cost of 

filing Form I–129, DHS applies the 

additional estimated time burden to 

complete and file Form 1–129 (0.25 

hours) to the respective total population 

and compensation rate of who may file, 

including an HR specialist, in-house 

lawyer, or outsourced lawyer. As shown 

in Table 14, DHS estimates, the total 

additional annual opportunity cost of 

time to petitioners completing and filing 

Form I–129 petitions will be 

approximately $3,457,401. 

TABLE 14—ADDITIONAL OPPORTUNITY COSTS OF TIME TO PETITIONERS FOR FILING FORM I–129 PETITIONS FROM AN

INCREASE IN TIME BURDEN

Cost items Total affected 

population 

Additional time 

burden to complete 

Form I–129 

(hours) 

Compensation 

rate Total cost 

A B C D = A × B × C 

Opportunity cost of time to complete Form I–129 for H– 

1B petitions by: 

HR specialist ...................................................................... 21,220 0.25 $47.57 $252,359 

In-house lawyer ................................................................. 27,586 0.25 102.00 703,443 

Outsourced lawyer ............................................................. 57,294 0.25 174.65 2,501,599 

Total ............................................................................ 106,100 .................................... .............................. 3,457,401 

Source: USCIS analysis. 

v. Costs of Submitting Registrations as 

Modified by This Final Rule 

DHS is amending the required 

information on the H–1B Registration 

Tool. In addition to the information 

required on the current registration tool, 

a registrant will 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, if such data is 

available. 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. For registrants relying on a 

private wage survey, if the proffered 

wage is less than the corresponding 

level I OES wage, the registrant will 

select the ‘‘Wage Level I and below’’ box 

on the registration tool. If the 

registration indicates that the H–1B 

beneficiary will work in multiple 

locations, or in multiple positions if the 

prospective petitioner is an agent, 

USCIS will rank and select the 

registration based on the lowest 

corresponding OES wage level that the 

proffered wage equals or exceeds. In the 

limited instance where there is no 

current OES prevailing wage 

information for the proffered position, 

the registrant will follow DOL guidance 

on prevailing wage determinations to 

select the OES wage level on the 

registration, and USCIS will rank and 

select based on the highest OES wage 

level. The changes to this registration 

requirement will impose increased 

opportunity costs of time to registrants, 

by adding additional information to 

their registration. 

The current estimated time burden to 

complete and file an electronic 

registration is 30 minutes (0.5 hours) per 

registration.199 DHS estimates the total 

time burden to complete and file a 

registration in light of this final rule will 

be 50 minutes (0.83 hours) per 

registration, which amounts to an 

additional time burden of 20 minutes 

(0.33 hours) per registration. The 

additional time burden accounts for the 

additional time a registrant will spend 

reviewing instructions, completing the 

registration, and submitting the 

registration. 

To estimate the additional cost of 

submitting a registration, DHS applies 

the additional estimated time burden to 

complete and submit the registration 

(0.33 hours) to the respective total 

population and total rate of 

compensation of who may file, 

including HR specialists, in-house 

lawyers, or outsourced lawyers. As 

shown in Table 15, DHS estimates the 

total additional annual opportunity cost 

of time to the prospective petitioners of 

completing and submitting registrations 

will be approximately $11,795,997. 


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200Source: USCIS, Office of Policy and Strategy, 

Policy Research Division (PRD), Form I–129H–1B, 

Claims 3, IRFA data (Aug. 18, 2020) & USCIS 

Analysis. 

TABLE 15—ADDITIONAL COST OF SUBMITTING REGISTRATIONS

Cost items Total affected 

population 

Additional time 

burden to submit 

registrations 

(hours) 

Compensation 

rate Total cost 

A B C D = A × B × C 

Opportunity cost of time to complete registrations by: 

HR specialist ...................................................................... 54,847 0.33 $47.57 $860,994 

In-house lawyer ................................................................. 71,302 0.33 102.00 2,400,025 

Outsourced lawyer ............................................................. 148,088 0.33 174.65 8,534,978 

Total ............................................................................ 274,237 .................................... .............................. 11,795,997 

Source: USCIS analysis. 

While the expectation is that the 

registration process will be run on an 

annual basis, USCIS may suspend the 

H–1B registration requirement, in its 

discretion, if it determines that the 

registration process is inoperable for any 

reason. The selection process also 

allows for selection based solely on the 

submission of petitions in any year in 

which the registration process is 

suspended due to technical or other 

issues. In years when registration is 

suspended, DHS estimates, based on the 

5-year average of H–1B cap-subject 

petitions received for FYs 2016 to 2020, 

that 211,797 H–1B cap-subject petitions 

will be submitted annually. In the event 

registration is suspended and 211,797 

H–1B cap-subject petitions are 

submitted, DHS estimates that 106,100 

petitions will be selected for 

adjudication to meet the numerical 

allocations and 105,697 petitions will be 

rejected. For FY 2021, DHS selected 

124,415 registrations to generate the 

106,100 petitions projected to meet the 

numerical allocations. Therefore, DHS 

estimates that the additional cost to 

petitioners for preparing and submitting 

H–1B cap-subject petitions in light of 

this final rule will be significantly 

higher in the event registration is 

suspended because more petitions will 

be prepared and submitted in this 

scenario. However, if registration is 

suspended there will be no costs 

associated with registration, so the 

overall additional cost of this final rule 

to petitioners will be less (stated another 

way, the estimated added cost for 

submitting approximately 212,000 

petitions if registration is suspended 

will be less than the added costs based 

on approximately 274,000 registrations 

and 106,000 petitions for those with 

selected registrations). Since the 

expectation is that registration will be 

run on an annual basis, and because the 

estimated additional costs resulting 

from this final rule will be less if 

registration is suspended, DHS is not 

separately estimating the costs for years 

when registration will be suspended 

and, instead, is relying on the additional 

costs created by this final rule when 

registration will be required to estimate 

total costs of this final rule to petitioners 

seeking to file H–1B cap-subject 

petitions. 

vi. Familiarization Cost 

Familiarization costs comprise the 

opportunity cost of the time spent 

reading and understanding the details of 

a rule to fully comply with the new 

regulation(s). To the extent that an 

individual or entity directly regulated 

by the rule incurs familiarization costs, 

those familiarization costs are a direct 

cost of the rule. The entities directly 

regulated by this rule are the employers 

who file H–1B petitions. Using FY 2020 

internal data on actual filings of Form 

I–129 H–1B petitions, DHS identified 

24,111 200 unique entities. DHS assumes 

that the petitioners require 

approximately two hours to familiarize 

themselves with the rule. Using the 

average total rate of compensation of HR 

specialists, In-house lawyers, and 

Outsourced lawyers from Table 4, and 

assuming one person at each entity 

familiarizes themself with the rule, DHS 

estimates a one-time total 

familiarization cost of $6,285,527 in FY 

2022. 

TABLE 16—FAMILIARIZATION COSTS TO THE PETITIONERS

Cost items Total affected 

population 

Additional 

time burden 

to familiarize 

(hours) 

Compensation 

rate Total cost 

A B C D = A × B × C 

Opportunity cost of time to familiarize the rule by: 

HR specialist .................................................................................................... 4,822 2 $47.57 $458,765 

In-house lawyer ............................................................................................... 6,269 2 102.00 1,278,876 

Outsourced lawyer ........................................................................................... 13,020 2 174.65 4,547,886 

Total .......................................................................................................... 24,111 ........................ ........................ 6,285,527 

Source: USCIS analysis. 


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201See INA section 286(m), 8 U.S.C. 1356(m). 

b. Total Estimated Costs of Regulatory 

Changes 

In this section, DHS presents the total 

annual costs of this final rule 

annualized over a 10-year 

implementation period. Table 17 details 

the total annual costs of this final rule 

to petitioners will be $21,538,925 in FY 

2022 and $15,253,398 in FY 2023 

through 2032. 

TABLE 17—SUMMARY OF ESTIMATED ANNUAL COSTS TO PETITIONERS IN THIS FINAL RULE

Costs 

Total 

estimated 

annual cost 

Petitioners’ additional opportunity cost of time in filing Form I–129 petitions ............................................................................... $3,457,401 

Petitioners’ additional opportunity cost of time in submitting information on the registration ....................................................... 11,795,997 

Familiarization Cost (Year 1 only FY 2022) .................................................................................................................................. 6,285,527 

Total Annual Costs (undiscounted) = FY 2022 ...................................................................................................................... 21,538,925 

Total Annual Cost (undiscounted) = FY 2023–FY 2032 ........................................................................................................ 15,253,398 

Table 18 shows costs over the 10-year 

implementation period of this final rule. 

DHS estimates the 10-year total net cost 

of the rule to petitioners to be 

approximately $158,819,507 

undiscounted, $136,217,032 discounted 

at 3-percent, and $113,007,809 

discounted at 7-percent. Over the 10- 

year implementation period of the rule, 

DHS estimates the annualized costs of 

the rule to be $15,968,792 annualized at 

3-percent, $16,089,770 annualized at 7- 

percent. 

TABLE 18—TOTAL COSTS OF THIS FINAL RULE

Year 

Total estimated costs 

$21,538,925 (year 1); 

$15,253,398 (year 2–10) 

Discounted at 

3-percent 

Discounted at 

7-percent 

1 ............................................................................................................................................................................... $20,911,578 $20,129,836 

2 ............................................................................................................................................................................... 14,377,791 13,322,909 

3 ............................................................................................................................................................................... 13,959,020 12,451,316 

4 ............................................................................................................................................................................... 13,552,447 11,636,744 

5 ............................................................................................................................................................................... 13,157,715 10,875,462 

6 ............................................................................................................................................................................... 12,774,481 10,163,983 

7 ............................................................................................................................................................................... 12,402,408 9,499,050 

8 ............................................................................................................................................................................... 12,041,173 8,877,617 

9 ............................................................................................................................................................................... 11,690,459 8,296,838 

10 ............................................................................................................................................................................. 11,349,961 7,754,054 

Total .................................................................................................................................................................. 136,217,032 113,007,809 

Annualized ........................................................................................................................................................ 15,968,792 16,089,770 

E.O. 13771 directs agencies to 

reduced regulation and control 

regulatory costs. This final rule is 

expected to be an E.O. 13771 regulatory 

action. DHS estimates the total cost of 

this rule will be $10,515,740 annualized 

using a 7- percent discount rate over a 

perpetual time horizon, in 2016 dollars, 

and discounted back to 2016. 

c. Costs to the Federal Government 

DHS is revising the process and 

system by which H–1B registrations or 

petitions, as applicable, will be selected 

toward the annual numerical 

allocations. This final rule will require 

updates to USCIS IT systems and 

additional time spent by USCIS on H– 

1B registrations or petitions. 

The INA provides for the collection of 

fees at a level that will ensure recovery 

of the full costs of providing 

adjudication and naturalization services 

by DHS, including administrative costs 

and services provided without charge to 

certain applicants and petitioners.201

DHS notes USCIS establishes its fees by 

assigning costs to an adjudication based 

on its relative adjudication burden and 

use of USCIS resources. Fees are 

established at an amount that is 

necessary to recover these assigned 

costs such as salaries and benefits of 

clerical staff, officers, and managers, 

plus an amount to recover unassigned 

overhead (such as facility rent, IT 

equipment and systems, or other 

expenses) and immigration services 

provided without charge. Consequently, 

since USCIS immigration fees are based 

on resource expenditures related to the 

benefit in question, USCIS uses the fee 

associated with an information 

collection as a reasonable measure of 

the collection’s costs to USCIS. DHS 

notes the time necessary for USCIS to 

review the information submitted with 

the forms relevant to this final rule 

includes the time to adjudicate the 

benefit request. These costs are captured 

in the fees collected for the benefit 

request from petitioners. 

B. Regulatory Flexibility Act 

The Regulatory Flexibility Act of 1980 

(RFA), 5 U.S.C. 601–612, as amended by 

the Small Business Regulatory 

Enforcement Fairness Act of 1996, 

Public Law 104–121 (March 29, 1996), 

requires Federal agencies to consider 

the potential impact of regulations on 


tkelley on DSKBCP9HB2PROD with RULES3
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202The economic impact, in percent, for each 

small entity i = (Cost of one petition for entity i × 

Number of petitions for entity i) × 100. The cost of 

one petition for entity i ($75.60) is estimated by 

adding the two cost components per petition of this 

final rule ($75.60 = $32.59 + $43.01). The first 

component ($32.59) is the weighted average 

additional cost of filing a petition, and is calculated 

by dividing total cost by the number of petitions 

($32.59 = $3,457,401/106,100) from Table 13. The 

second component ($43.01) is the weighted average 

cost of submitting information on the registration 

and is calculated by dividing total cost by the 

number of baseline petitions ($43.01 = $11,795,997/ 

274,237) from Table 14. The number of petitions for 

entity i is taken from USCIS internal data on actual 

filings of I–129 H–1B petition. The entity’s sales 

revenue is taken from ReferenceUSA, Manta, 

Cortera, and Guidestar databases. 

small entities during the development of 

their rules. ‘‘Small entities’’ are small 

businesses, not-for-profit organizations 

that are not dominant in their fields, 

and governmental jurisdictions with 

populations of less than 50,000. An 

‘‘individual’’ is not considered a small 

entity, and costs to an individual from 

a rule are not considered for RFA 

purposes. In addition, the courts have 

held that the RFA requires an agency to 

perform an initial regulatory flexibility 

analysis (IRFA) of small entity impacts 

only when a rule directly regulates 

small entities. Consequently, any 

indirect impacts from a rule to a small 

entity are not considered as costs for 

RFA purposes. 

Although individuals, rather than 

small entities, submit the majority of 

immigration and naturalization benefit 

applications and petitions, this final 

rule will affect entities that file and pay 

fees for H–1B non-immigrant benefit 

requests. The USCIS forms that are 

subject to an RFA analysis for this final 

rule are Form I–129, Petition for a 

Nonimmigrant Worker and the 

Registration H–1B Tool. 

DHS does not believe that the changes 

in this final rule will have a significant 

economic impact on a substantial 

number of small entities that will file 

H–1B petitions. A Final Regulatory 

Flexibility Analysis (FRFA) follows. 

1. A Statement of Need for, and 

Objectives of, This Final Rule 

DHS’s objectives and legal authority 

for this final rule are discussed earlier 

in the preamble. DHS is amending its 

regulations governing H–1B specialty 

occupation workers. The purpose of this 

final rule is to better ensure that H–1B 

classification is more likely to be 

awarded to petitioners seeking to 

employ relatively higher-skilled and 

higher-paid beneficiaries. DHS believes 

these changes will disincentivize use of 

the H–1B program to fill relatively 

lower-paid, lower-skilled positions. 

2. A Statement of Significant Issues 

Raised by the Public Comments in 

Response to the Initial Regulatory 

Flexibility Analysis, a Statement of 

Assessment of Any Changes Made in the 

Proposed Rule as a Result of Such 

Comments 

Comments: A professional association 

wrote that DHS claimed that no small 

entities would be significantly impacted 

by the proposed rule, but DHS also 

estimated that 80.1 percent of those that 

filed Form I–129 were small entities. An 

individual commenter wrote that DHS 

incorrectly concluded that the proposed 

rule would not have a significant impact 

on small entities because small 

businesses would be unlikely to have 

the legal expertise or institutional 

knowledge to navigate the H–1B system. 

Response: DHS estimates the 

economic impact for each small entity, 

based on the additional cost and time 

associated with the changes to the form, 

in percentages, is the sum of the impacts 

of the final rule divided by the entity’s 

sales revenue.202 DHS constructed the 

distribution of economic impact of the 

final rule based on a sample of 312 

small entities. Across all 312 small 

entities, the increase in cost to a small 

entity will range from 0.00000026 

percent to 2.5 percent of that entity’s FY 

2020 revenue. Of the 312 small entities, 

0 percent (0 small entities) will 

experience a cost increase that is greater 

than 5 percent of revenues. 

Comments: Some commenters 

generally stated that the proposed rule 

would harm small businesses. Multiple 

commenters, including a trade 

association, employer, and individuals, 

wrote that the proposed rule would 

harm small and emerging businesses 

who, often, could not offer higher 

salaries compared to larger firms. Other 

commenters said the proposed rule 

would favor larger firms at the expense 

of small and medium sized businesses. 

An individual commenter wrote that the 

proposed rule would harm small 

technology companies and start-ups that 

are dependent on recruiting young 

talent, as they would be required to offer 

such employees level III and level IV 

wages when level I and level II wages 

would be more appropriate. Another 

individual commenter said companies 

would suffer because many small 

information technology or financial 

companies could not provide as high of 

salaries to their foreign workers as big 

companies could. An individual 

commenter wrote that the proposed rule 

would harm small businesses that often 

could not find the appropriate talent 

domestically and would have a 

legitimate need to hire H–1B workers, 

while another commenter argued the 

proposed rule would shrink the hiring 

talent pool for small businesses. An 

individual commenter wrote that, under 

the proposed rule, small businesses 

would not be able to operate due to an 

inability to find suitable employees. 

Similarly, an individual commenter 

wrote that the proposed rule would 

ensure that H–1B visas would go to ‘‘the 

highest bidders’’ and would 

discriminate against smaller businesses 

with a genuine need for H–1B 

employees. An individual commenter 

wrote that the proposed rule would 

encourage larger employers who could 

afford to pay higher wages to employees 

to artificially inflate their job 

requirements and increase their chance 

of selection through the ranked 

selection process. Another commenter 

asserted that smaller companies in nonmetropolitan areas, who might have 

difficulty finding domestic candidates 

for positions, would be negatively 

impacted by the proposed rule. 

Response: DHS acknowledges that an 

employer offering a level I or below 

wage under the regular cap, and an 

employer offering a level II, I, or below 

wage under the advanced degree 

exemption, may have a lesser chance of 

selection than under the current random 

selection process. DHS does not believe 

that the changes in this final rule will 

have a significant economic impact on 

a substantial number of small 

businesses. As explained in the NPRM, 

DHS conducted an RFA and found that 

the changes in this rule would not have 

a significant economic impact on a 

substantial number of small entities. 

Additionally, this rule does not treat 

people who work for small-sized 

entities differently than those who work 

for large companies. While DHS 

recognizes that some small businesses 

may operate on smaller margins than 

larger companies, if an employer values 

a beneficiary’s work and the unique 

qualities the beneficiary possesses, the 

employer can offer a higher wage than 

required by the prevailing wage level to 

reflect that value. If a small company is 

unable to pay an employee at wage level 

III or IV for a greater chance of selection, 

they could then try to find a substitute 

U.S. worker. 

Comments: An individual commenter 

wrote that rural areas and smaller towns 

depend on entry-level H–1B workers at 

a level I wage, but those communities 

would not be able to justify hiring such 

H–1B workers at level III and level IV 

wages. Another individual commenter 

said the rule would harm employers in 

rural areas where wages, often, would 

be lower. A professional association 

wrote that small and medium sized 

medical practices, often serving rural or 


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203U.S. Census Bureau, North American Industry 

Classification System, http://www.census.gov/eos/ 

www/naics/ (last visited Oct. 21, 2020). 

204 DHS utilized a subscription-based online 

database of U.S. entities, ReferenceUSA, as well as 

three other open-access, free databases of public 

and private entities, Manta, Cortera, and Guidestar, 

to determine the North American Industry 

Classification System (NAICS) code, revenue, and 

employee count for each entity. Guidelines 

suggested by the SBA Office of Advocacy indicate 

that the impact of a rule could be significant if the 

cost of the regulation exceeds 5 percent of the labor 

costs of the entities in the sector. Small Business 

Administration, Office of Advocacy, A Guide for 

Government Agencies, How to Comply with the 

Regulatory Flexibility Act (Aug. 2017), at 19, 

https://www.sba.gov/sites/default/files/advocacy/ 

How-to-Comply-with-the-RFA-WEB.pdf. 

205Source: USCIS, Office of Policy and Strategy, 

Policy Research Division (PRD), Form I–129H–1B, 

Claims 3, IRFA data (Aug. 18, 2020) & USCIS 

Analysis. 

206The annual numeric estimate of the small 

entities (19,319) = Population (24,111) * Percentage 

of small entities (80.1%). 

207The economic impact, in percent, for each 

small entity i = (Cost of one petition for entity i × 

Number of petitions for entity i) × 100. The cost of 

one petition for entity i ($75.60) is estimated by 

adding the two cost components per petition of this 

final rule ($75.60 = $32.59 + $43.01). The first 

component ($32.59) is the weighted average 

additional cost of filing a petition, and is calculated 

by dividing total cost by the number of petitions 

($32.59 = $3,457,401/106,100) from Table 14. The 

second component ($43.01) is the weighted average 

cost of submitting information on the registration 

and is calculated by dividing total cost by the 

number of baseline petitions ($43.01 = $11,795,997/ 

274,237) from Table 15. The number of petitions for 

entity i is taken from USCIS internal data on actual 

filings of I–129 H–1B petition. The entity’s sales 

revenue is taken from ReferenceUSA, Manta, 

Cortera, and Guidestar databases. 

low-income areas, depend on new or 

inexperienced physicians at the level I 

or level II wage rate and would be 

unable to compete for H–1B cap slots for 

these employees under the proposed 

rule. An employer wrote that rural 

healthcare providers would not be able 

to meet the wage rates necessary to 

attract workers on H–1B visas, and, as 

a result, the proposed rule would 

decrease the supply of healthcare labor 

to rural communities. 

Response: The rule takes the 

geographic area into account when 

ranking registrations or petitions, and, 

therefore, DHS does not agree that this 

rule will harm employers in rural or 

other areas where wages often are lower. 

Particularly, as stated in the proposed 

rule, USCIS will select H–1B 

registrations or petitions, as applicable, 

based on the highest OES prevailing 

wage level that the proffered wage 

equals or exceeds for the relevant SOC 

code and area(s) of intended 

employment (emphasis added). The 

prevailing wage already accounts for 

wage variations by location. 

Additionally, this rule does not treat 

foreign workers who work for smallsized entities differently than those who 

work for large companies. 

3. The Response of the Agency to Any 

Comments Filed by the Chief Counsel 

for Advocacy of the Small Business 

Administration in Response to the Rule, 

and a Detailed Statement of Any Change 

Made to the Final Rule as a Result of the 

Comments 

DHS did not receive comments on 

this rule from the Chief Counsel for 

Advocacy of the Small Business 

Administration. 

4. A Description of and an Estimate of 

the Number of Small Entities to Which 

This Final Rule Will Apply or an 

Explanation of Why No Such Estimate 

Is Available 

For this analysis, DHS conducted a 

sample analysis of historical Form I–129 

H–1B petitions to estimate the number 

of small entities impacted by this final 

rule. DHS utilized a subscription-based 

online database of U.S. entities, 

ReferenceUSA, as well as three other 

open-access, free databases of public 

and private entities, Manta, Cortera, and 

Guidestar, to determine the North 

American Industry Classification 

System (NAICS) code,203 revenue, and 

employee count for each entity in the 

sample. To determine whether an entity 

is small for purposes of the RFA, DHS 

first classified the entity by its NAICS 

code and, then, used SBA size standards 

guidelines 204 to classify the revenue or 

employee count threshold for each 

entity. Based on the NAICS codes, some 

entities were classified as small based 

on their annual revenue, and some by 

their numbers of employees. Once as 

many entities as possible were matched, 

those that had relevant data were 

compared to the size standards provided 

by the SBA to determine whether they 

were small or not. Those that could not 

be matched or compared were assumed 

to be small under the presumption that 

non-small entities would have been 

identified by one of the databases at 

some point in their existence. 

Using FY 2020 internal data on actual 

filings of Form I–129 H–1B petitions, 

DHS identified 24,111 205 unique 

entities. DHS devised a methodology to 

conduct the small entity analysis based 

on a representative, random sample of 

the potentially impacted population. 

DHS first determined the minimum 

sample size necessary to achieve a 95 

percent confidence level estimation for 

the impacted population of entities 

using the standard statistical formula at 

a 5 percent margin of error. Then, DHS 

created a sample size greater than the 

minimum necessary to increase the 

likelihood that our matches would meet 

or exceed the minimum required 

sample. 

DHS randomly selected a sample of 

473 entities from the population of 

24,111 entities that filed Form I–129 for 

H–1B petitions in FY 2020. Of the 473 

entities, 406 entities returned a 

successful match of a filing entity in the 

ReferenceUSA, Manta, Cortera, and 

Guidestar databases; 67 entities did not 

return a match. Using these databases’ 

revenue or employee count and their 

assigned North American Industry 

Classification System (NAICS) code, 

DHS determined 312 of the 406 matches 

to be small entities, 94 to be non-small 

entities. Based on previous experience 

conducting RFAs, DHS assumes filing 

entities without database matches or 

missing revenue/employee count data 

are likely to be small entities. As a 

result, to prevent underestimating the 

number of small entities this rule will 

affect, DHS conservatively considers all 

the non-matched and missing entities as 

small entities for the purpose of this 

analysis. Therefore, DHS conservatively 

classifies 379 of 473 entities as small 

entities, including combined nonmatches (67), and small entity matches 

(312). Thus, DHS estimates that 80.1% 

(379 of 473) of the entities filing Form 

I–129 H–1B petitions are small entities. 

In this analysis DHS assumes that the 

distribution of firm size for our sample 

is the same as the entire population of 

Form I–129. Thus, DHS estimates the 

number of small entities to be 80.1% of 

the population of 24,111 entities that 

filed Form I–129 under the H–1B 

classification, as summarized in Table 

19 below. The annual numeric estimate 

of the small entities impacted by this 

final rule is 19,319 entities.206

TABLE 19—NUMBER OF SMALL ENTITIES FOR FORM I–129 FOR H–1B, 

FY 2020 

Population Number of 

small entities 

Proportion of 

population 

(percent) 

24,111 ....... 19,319 80.1 

Following the distributional 

assumptions above, DHS uses the set of 

312 small entities with matched revenue 

data to estimate the economic impact of 

this final rule on each small entity. The 

economic impact on each small entity, 

in percentages, is the sum of the impacts 

of the final rule divided by the entity’s 

sales revenue.207 DHS constructed the 

distribution of economic impact of the 

final rule based on the sample of 312 

small entities. Across all 312 small 


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208See U.S. Department of Labor, Bureau of Labor 

Statistics, Historical Consumer Price Index for All 

Urban Consumers (CPI–U): U.S. city average, all 

items, by month, https://www.bls.gov/cpi/tables/ 

supplemental-files/historical-cpi-u-202003.pdf (last 

visited Sept. 2, 2020). 

Calculation of inflation: (1) Calculate the average 

monthly CPI–U for the reference year (1995) and the 

current year (2019); (2) Subtract reference year CPI– 

U from current year CPI–U; (3) Divide the difference 

of the reference year CPI–U and current year CPI– 

U by the reference year CPI–U; (4) Multiply by 100 

= [(Average monthly CPI–U for 2019¥Average 

monthly CPI–U for 1995)/(Average monthly CPI–U 

for 1995)] * 100 = [(255.657¥152.383)/152.383] * 

100 = (103.274/152.383) *100 = 0.6777 * 100 = 

67.77 percent = 68 percent (rounded) 

Calculation of inflation-adjusted value: $100 

million in 1995 dollars * 1.68 = $168 million in 

2019 dollars. 

entities, the increase in cost to a small 

entity will range from 0.00000026 

percent to 2.5 percent of that entity’s FY 

2020 revenue. Of the 312 small entities, 

0 percent (0 small entities) will 

experience a cost increase that is greater 

than 5 percent of revenues. 

Extrapolating to the population of 

19,319 small entities and assuming an 

economic impact significance threshold 

of 5 percent of annual revenues, DHS 

estimates no small entities will be 

significantly affected by this final rule. 

Based on this analysis, DHS does not 

believe that this final rule will have a 

significant economic impact on a 

substantial number of small entities that 

file H–1B petitions. 

5. A Description of the Projected 

Reporting, Recordkeeping, and Other 

Compliance Requirements of the Final 

Rule, Including an Estimate of the 

Classes of Small Entities That Will Be 

Subject to the Requirement and the 

Types of Professional Skills Necessary 

for Preparation of the Report or Record 

As stated above in the preamble, this 

final rule will impose additional 

reporting, recordkeeping, or other 

compliance requirements on entities 

that could be small entities. 

6. Description of the Steps the Agency 

Has Taken To Minimize the Significant 

Economic Impact on Small Entities 

Consistent With the Stated Objectives of 

the Applicable Statues, Including a 

Statement of Factual, Policy, and Legal 

Reasons for Selecting the Alternative 

Adopted in the Final Rule and Why 

Each One of the Other Significant 

Alternatives to the Rule Considered by 

the Agency Which Affect the Impact on 

Small Entities Was Rejected 

DHS requested comments on, 

including potential alternatives to, the 

proposed ranking and selection of 

registrations based on the OES 

prevailing wage level that corresponds 

to the requirements of the proffered 

position in situations where there is no 

current OES prevailing wage 

information. In the RFA context, DHS 

sought comments on alternatives that 

would accomplish the objectives of the 

proposed rule without unduly 

burdening small entities. DHS also 

welcomed any public comments or data 

on the number of small entities that 

would be petitioning for an H–1B 

employee and any direct impacts on 

those small entities. 

Comment: Some commenters said that 

DHS should consider ranking by years 

of experience, rather than by wage. One 

commenter asked DHS to give an 

advantage to candidates who have work 

experience in the United States. 

Response: DHS declines to adopt 

these alternatives, as ranking and 

selection by years of experience would 

not best accomplish the goal of 

attracting the best and brightest workers. 

DHS believes that the salary, relative to 

others in the same occupational 

classification and area of intended 

employment, rather than years of 

experience, is generally more indicative 

of skill level and relative value/ 

productivity of the worker to the United 

States. See section 3.3 Requests for 

comments on alternatives for additional 

suggested alternatives. 

C. Congressional Review Act 

The Office of Information and 

Regulatory Affairs has determined that 

this final rule is a major rule, as defined 

in 5 U.S.C. 804, also known as the 

‘‘Congressional Review Act’’ (CRA), as 

enacted in section 251 of the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, Public Law 104– 

121, sec. 251, 110 Stat. 868, 873, and 

codified at 5 U.S.C. 801 et seq. 

Therefore, the rule requires at least a 60- 

day delayed effective date. DHS has 

complied with the CRA’s reporting 

requirements and has sent this final rule 

to Congress and to the Comptroller 

General as required by 5 U.S.C. 

801(a)(1). 

D. Unfunded Mandates Reform Act of 

1995 

The Unfunded Mandates Reform Act 

of 1995 (UMRA) is intended, among 

other things, to curb the practice of 

imposing unfunded federal mandates on 

State, local, and tribal governments. 

Title II of the UMRA requires each 

federal agency to prepare a written 

statement assessing the effects of any 

federal mandate in a proposed or final 

agency rule that may result in a $100 

million or more expenditure (adjusted 

annually for inflation) in any one year 

by State, local, and tribal governments, 

in the aggregate, or by the private sector. 

Based on the Consumer Price Index for 

All Urban Consumers (CPI–U), the value 

equivalent of $100 million in 1995 

adjusted for inflation to 2019 levels is 

approximately $168 million.208

This rule does not contain a ‘‘Federal 

mandate’’ as defined in UMRA that may 

result in $100 million or more 

expenditures (adjusted annually for 

inflation—$168 million in 2019 dollars) 

in any one year by State, local and tribal 

governments or the private sector. This 

rule also does not uniquely affect small 

governments. Accordingly, Title II of 

UMRA requires no further agency action 

or analysis. 

E. Executive Order 13132 (Federalism) 

This final rule will not have 

substantial direct effects on the states, 

on the relationship between the national 

government and the states, or on the 

distribution of power and 

responsibilities among the various 

levels of government. Therefore, in 

accordance with section 6 of Executive 

Order 13132, DHS has determined that 

this final rule does not have sufficient 

federalism implications to warrant the 

preparation of a federalism summary 

impact statement. 

F. Executive Order 12988 (Civil Justice 

Reform) 

This final rule meets the applicable 

standards set forth in sections 3(a) and 

3(b)(2) of Executive Order 12988. 

G. Executive Order 13175 (Consultation 

and Coordination With Indian Tribal 

Governments) 

This final rule does not have ‘‘tribal 

implications’’ because it does not have 

substantial direct effects on one or more 

Indian tribes, on the relationship 

between the Federal Government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal Government and Indian tribes. 

Accordingly, E.O. 13175, Consultation 

and Coordination with Indian Tribal 

Governments, requires no further 

agency action or analysis. 

H. National Environmental Policy Act 

(NEPA) 

DHS analyzes actions to determine 

whether the National Environmental 

Policy Act, Public Law 91–190, 42 

U.S.C. 4321 through 4347 (NEPA), 

applies to them and, if so, what degree 

of analysis is required. DHS Directive 

023–01 Rev. 01 (Directive) and 

Instruction Manual 023–01–001–01 Rev. 

01, Implementation of the National 

Environmental Policy Act (Instruction 

Manual) establish the policies and 

procedures that DHS and its 


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209See 40 CFR 1507.3(b)(2)(ii), 1508.4. 

210 Instruction Manual section V.B(2)(a)–(c). 

211 If the proffered wage is expressed as a range, 

USCIS would make the comparison using the 

lowest wage in the range. 212See 85 FR 69236, 69261–2. 

components use to comply with NEPA 

and the Council on Environmental 

Quality (CEQ) regulations for 

implementing NEPA, 40 CFR parts 

1500–1508. 

The CEQ regulations allow federal 

agencies to establish, with CEQ review 

and concurrence, categories of actions 

(‘‘categorical exclusions’’) that 

experience has shown do not 

individually or cumulatively have a 

significant effect on the human 

environment and, therefore, do not 

require an Environmental Assessment 

(EA) or Environmental Impact 

Statement (EIS).209 Categorical 

exclusions established by DHS are set 

forth in Appendix A of the Instruction 

Manual. Under DHS NEPA 

implementing procedures, for an action 

to be categorically excluded, it must 

satisfy each of the following three 

conditions: (1) The entire action clearly 

fits within one or more of the categorical 

exclusions; (2) the action is not a piece 

of a larger action; and (3) no 

extraordinary circumstances exist that 

create the potential for a significant 

environmental effect.210

As discussed in more detail 

throughout this final rule, DHS is 

amending regulations governing the 

selection of registrations or petitions, as 

applicable, toward the annual H–1B 

numerical allocations. This final rule 

establishes that, if more registrations are 

received during the annual initial 

registration period (or petition filing 

period, if applicable) than necessary to 

reach the applicable numerical 

allocation, USCIS will rank and select 

the registrations (or petitions, if the 

registration process is suspended) 

received on the basis of the highest OES 

prevailing 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 and below. If a proffered wage falls 

below an OES wage level I, because the 

proffered wage is based on a prevailing 

wage from another legitimate source 

(other than OES) or an independent 

authoritative source, USCIS will rank 

the registration in the same category as 

OES wage level I.211

Generally, DHS believes NEPA does 

not apply to a rule intended to change 

a discrete aspect of a visa program 

because any attempt to analyze its 

potential impacts would be largely 

speculative, if not completely so. This 

final rule does not propose to alter the 

statutory limitations on the numbers of 

nonimmigrants who: May be issued 

initial H–1B visas or granted initial H– 

1B nonimmigrant status, consequently 

will be admitted into the United States 

as H–1B nonimmigrants, will be 

allowed to change their status to H–1B, 

or will extend their stay in H–1B status. 

DHS cannot reasonably estimate 

whether the wage level-based ranking 

approach to select H–1B registrations (or 

petitions in any year in which the 

registration requirement were 

suspended) that DHS is implementing 

will affect how many petitions will be 

filed for workers to be employed in 

specialty occupations or whether the 

regulatory amendments herein will 

result in an overall change in the 

number of H–1B petitions that 

ultimately will be approved, and the 

number of H–1B workers who will be 

employed in the United States in any 

FY. DHS has no reason to believe that 

these amendments to H–1B regulations 

will change the environmental effect, if 

any, of the existing regulations. 

Therefore, DHS has determined that, 

even if NEPA applied to this action, this 

final rule clearly fits within categorical 

exclusion A3(d) in the Instruction 

Manual, which provides an exclusion 

for ‘‘promulgation of rules . . . that 

amend an existing regulation without 

changing its environmental effect.’’ This 

final rule will maintain the current 

human environment by proposing 

improvements to the H–1B program that 

will take effect during the economic 

crisis caused by COVID–19 in a way that 

more effectively will prevent an adverse 

impact from the employment of H–1B 

workers on the wages and working 

conditions of similarly employed U.S. 

workers. This final rule is not a part of 

a larger action and presents no 

extraordinary circumstances creating 

the potential for significant 

environmental effects. Therefore, this 

action is categorically excluded and no 

further NEPA analysis is required. 

I. Paperwork Reduction Act 

Under the Paperwork Reduction Act 

of 1995 (PRA) Public Law 104–13, 44 

U.S.C. 3501, et seq., all Departments are 

required to submit to the Office of 

Management and Budget, for review and 

approval, any reporting requirements 

inherent in a rule. In compliance with 

the PRA, DHS published a notice of 

proposed rulemaking on November 2, 

2020, in which it requested comments 

on the revisions to the information 

collections associated with this 

rulemaking.212 DHS responded to those 

comments in Section IV.E.2. of this final 

rule. 

The following is an overview of the 

information collections associated with 

this final rule: 

1. USCIS H–1B Registration Tool 

(1) Type of Information Collection: 

Revision of a Currently Approved 

Collection. 

(2) Title of the Form/Collection: H–1B 

Registration Tool. 

(3) Agency form number, if any, and 

the applicable component of the DHS 

sponsoring the collection: OMB–64; 

USCIS. 

(4) Affected public who will be asked 

or required to respond, as well as a brief 

abstract: Primary: Business or other forprofit. USCIS will use the data collected 

through the H–1B Registration Tool to 

select a sufficient number of 

registrations projected as needed to 

meet the applicable H–1B cap 

allocations and to notify registrants 

whether their registrations were 

selected. 

(5) An estimate of the total number of 

respondents and the amount of time 

estimated for an average respondent to 

respond: The estimated total number of 

respondents for the information 

collection H–1B Registration Tool is 

275,000, and the estimated hour burden 

per response is 0.833 hours. 

(6) An estimate of the total public 

burden (in hours) associated with the 

collection: The total estimated annual 

hour burden associated with this 

collection of information is 229,075 

hours. 

(7) An estimate of the total public 

burden (in cost) associated with the 

collection: The estimated total annual 

cost burden associated with this 

collection of information is $0. 

2. USCIS Form I–129 

(1) Type of Information Collection: 

Revision of a Currently Approved 

Collection. 

(2) Title of the Form/Collection: 

Petition for a Nonimmigrant Worker. 

(3) Agency form number, if any, and 

the applicable component of the DHS 

sponsoring the collection: I–129; USCIS. 

(4) Affected public who will be asked 

or required to respond, as well as a brief 

abstract: Primary: Business or other forprofit. USCIS uses the data collected on 

this form to determine eligibility for the 

requested nonimmigrant petition and/or 

requests to extend or change 

nonimmigrant status. An employer (or 

agent, where applicable) uses this form 

to petition USCIS for an alien to 


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temporarily enter as a nonimmigrant. 

An employer (or agent, where 

applicable) also uses this form to 

request an extension of stay or change 

of status on behalf of the alien worker. 

The form serves the purpose of 

standardizing requests for 

nonimmigrant workers and ensuring 

that basic information required for 

assessing eligibility is provided by the 

petitioner while requesting that 

beneficiaries be classified under certain 

nonimmigrant employment categories. It 

also assists USCIS in compiling 

information required by Congress 

annually to assess effectiveness and 

utilization of certain nonimmigrant 

classifications. 

USCIS also uses the data to determine 

continued eligibility. For example, the 

data collected is used in compliance 

reviews and other inspections to ensure 

that all program requirements are being 

met. 

(5) An estimate of the total number of 

respondents and the amount of time 

estimated for an average respondent to 

respond: I–129 is 294,751 and the 

estimated hour burden per response is 

3.09 hours; the estimated total number 

of respondents for the information 

collection E–1/E–2 Classification 

Supplement to Form I–129 is 4,760 and 

the estimated hour burden per response 

is 0.67 hours; the estimated total 

number of respondents for the 

information collection Trade Agreement 

Supplement to Form I–129 is 3,057 and 

the estimated hour burden per response 

is 0.67 hours; the estimated total 

number of respondents for the 

information collection H Classification 

Supplement to Form I–129 is 96,291 

and the estimated hour burden per 

response is 2 hours; the estimated total 

number of respondents for the 

information collection H–1B and H–1B1 

Data Collection and Filing Fee 

Exemption Supplement is 96,291 and 

the estimated hour burden per response 

is 1 hour; the estimated total number of 

respondents for the information 

collection L Classification Supplement 

to Form I–129 is 37,831 and the 

estimated hour burden per response is 

1.34 hours; the estimated total number 

of respondents for the information 

collection O and P Classifications 

Supplement to Form I–129 is 22,710 

and the estimated hour burden per 

response is 1 hour; the estimated total 

number of respondents for the 

information collection Q–1 

Classification Supplement to Form I– 

129 is 155 and the estimated hour 

burden per response is 0.34 hours; the 

estimated total number of respondents 

for the information collection R–1 

Classification Supplement to Form I– 

129 is 6,635 and the estimated hour 

burden per response is 2.34 hours. 

(6) An estimate of the total public 

burden (in hours) associated with the 

collection: The total estimated annual 

hour burden associated with this 

collection of information is 1,293,873 

hours. 

(7) An estimate of the total public 

burden (in cost) associated with the 

collection: The estimated total annual 

cost burden associated with this 

collection of information is $70,681,290. 

J. Signature 

The Acting Secretary of Homeland 

Security, Chad F. Wolf, having reviewed 

and approved this document, is 

delegating the authority to electronically 

sign this document to Ian J. Brekke, who 

is the Senior Official Performing the 

Duties of the General Counsel for DHS, 

for purposes of publication in the 

Federal Register. 

List of Subjects in 8 CFR Part 214 

Administrative practice and 

procedure, Aliens, Cultural exchange 

programs, Employment, Foreign 

officials, Health professions, Reporting 

and recordkeeping requirements, 

Students. 

Accordingly, DHS amends part 214 of 

chapter I of title 8 of the Code of Federal 

Regulations as follows: 

PART 214—NONIMMIGRANT CLASSES 

■ 1. The authority citation for part 214 

continues to read as follows: 

Authority: 6 U.S.C. 202, 236; 8 U.S.C. 

1101, 1102, 1103, 1182, 1184, 1186a, 1187, 

1221, 1281, 1282, 1301–1305 and 1372; sec. 

643, Pub. L. 104–208, 110 Stat. 3009–708; 

Pub. L. 106–386, 114 Stat. 1477–1480; 

section 141 of the Compacts of Free 

Association with the Federated States of 

Micronesia and the Republic of the Marshall 

Islands, and with the Government of Palau, 

48 U.S.C. 1901 note and 1931 note, 

respectively; 48 U.S.C. 1806; 8 CFR part 2; 

Pub. L. 115–218. 

■ 2. Section 214.2 is amended by: 

■ a. Revising the first sentence of 

paragraph (h)(8)(iii)(A)(1) introductory 

text; 

■ b. Adding paragraphs 

(h)(8)(iii)(A)(1)(i) and (ii); 

■ c. In paragraph (h)(8)(iii)(A)(5)(i), 

revising the last two sentences and 

adding a sentence at the end; 

■ d. In paragraph (h)(8)(iii)(A)(5)(ii), 

revising the last two sentences and 

adding a sentence at the end; 

■ e. In paragraph (h)(8)(iii)(A)(6)(i), 

revising the last two sentences and 

adding a sentence at the end; 

■ f. In paragraph (h)(8)(iii)(A)(6)(ii), 

revising the last two sentences and 

adding a sentence at the end; 

■ g. Revising paragraphs (h)(8)(iii)(A)(7) 

and (h)(8)(iii)(D)(1); 

■ h. In paragraph (h)(8)(iv)(B)(1), 

revising the last three sentences and 

adding three sentences at the end; 

■ i. Revising paragraph (h)(8)(iv)(B)(2); 

■ j. Removing and reserving paragraph 

(h)(8)(v); 

■ k. Revising paragraph (h)(10)(ii); 

■ l. Revising paragraph (h)(11)(iii)(A)(2); 

■ m. Redesignating paragraphs 

(h)(11)(iii)(A)(3) through (5) as 

(h)(11)(iii)(A)(4) through (6); and 

■ n. Adding a new paragraph 

(h)(11)(iii)(A)(3) and paragraph 

(h)(24)(i). 

The revisions and additions read as 

follows: 

§ 214.2 Special requirements for 

admission, extension, and maintenance of 

status. 

* * * * * 

(h) * * * 

(8) * * * 

(iii) * * * 

(A) * * * 

(1) * * * Except as provided in 

paragraph (h)(8)(iv) of this section, 

before a petitioner is eligible to file an 

H–1B cap-subject petition for a 

beneficiary who may be counted under 

section 214(g)(1)(A) of the Act (‘‘H–1B 

regular cap’’) or eligible for exemption 

under section 214(g)(5)(C) of the Act 

(‘‘H–1B advanced degree exemption’’), 

the prospective petitioner or its attorney 

or accredited representative must 

register to file a petition on behalf of an 

alien beneficiary electronically through 

the USCIS website (www.uscis.gov). 

* * * 

(i) Ranking by wage levels. USCIS will 

rank and select registrations as set forth 

in paragraphs (h)(8)(iii)(A)(5) and (6) of 

this section. For purposes of the ranking 

and selection process, USCIS will use 

the highest corresponding Occupational 

Employment Statistics (OES) wage level 

that the proffered wage will equal or 

exceed for the relevant Standard 

Occupational Classification (SOC) code 

and area(s) of intended employment. If 

the proffered wage is lower than the 

OES wage level I, because it is based on 

a prevailing wage from another 

legitimate source (other than OES) or an 

independent authoritative source, 

USCIS will rank the registration in the 

same category as OES wage level I. If the 

H–1B beneficiary will work in multiple 

locations, or in multiple positions if the 

registrant is an agent, 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 


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Federal Register / Vol. 86, No. 5 / Friday, January 8, 2021 / Rules and Regulations 1733 

select the registration based on the OES 

wage level that corresponds to the 

requirements of the proffered position. 

(ii) [Reserved] 

* * * * * 

(5) * * * 

(i) * * * If USCIS has received more 

registrations on the final registration 

date than necessary to meet the H–1B 

regular cap under Section 214(g)(1)(A) 

of the Act, USCIS will rank and select 

from among all registrations properly 

submitted on the final registration date 

on the basis of the highest OES wage 

level that the proffered wage equals or 

exceeds for the relevant SOC code and 

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 the proffered position, 

USCIS will rank and select petitions 

based on the appropriate wage level that 

corresponds to the requirements of the 

proffered position. If USCIS receives 

and ranks more registrations at a 

particular wage level than the projected 

number needed to meet the numerical 

limitation, USCIS will randomly select 

from all registrations within that 

particular wage level a sufficient 

number of registrations needed to reach 

the numerical limitation. 

(ii) * * * If USCIS has received more 

than a sufficient number of registrations 

to meet the H–1B regular cap under 

Section 214(g)(1)(A) of the Act, USCIS 

will rank and select from among all 

registrations properly submitted during 

the initial registration period on the 

basis of the highest OES wage level that 

the proffered wage equals or exceeds for 

the relevant SOC code and 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 the 

proffered position, USCIS will rank and 

select petitions based on the appropriate 

wage level that corresponds to the 

requirements of the proffered position. 

If USCIS receives and ranks more 

registrations at a particular wage level 

than the projected number needed to 

meet the numerical limitation, USCIS 

will randomly select from all 

registrations within that particular wage 

level a sufficient number of registrations 

needed to reach the numerical 

limitation. 

(6) * * * 

(i) * * * If on the final registration 

date, USCIS has received more 

registrations than necessary to meet the 

H–1B advanced degree exemption 

limitation under Section 214(g)(5)(C) of 

the Act, USCIS will rank and select, 

from among the registrations properly 

submitted on the final registration date 

that may be counted against the 

advanced degree exemption, the number 

of registrations necessary to reach the 

H–1B advanced degree exemption 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 the proffered position, 

USCIS will rank and select petitions 

based on the appropriate wage level that 

corresponds to the requirements of the 

proffered position. If USCIS receives 

and ranks more registrations at a 

particular wage level than the projected 

number needed to meet the numerical 

limitation, USCIS will randomly select 

from all registrations within that 

particular wage level a sufficient 

number of registrations necessary to 

reach the H–1B advanced degree 

exemption. 

(ii) * * * USCIS will rank and select, 

from among the remaining registrations 

properly submitted during the initial 

registration period that may be counted 

against the advanced degree exemption 

numerical limitation, the number of 

registrations necessary to reach the H– 

1B advanced degree exemption 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 the proffered position, 

USCIS will rank and select petitions 

based on the appropriate wage level that 

corresponds to the requirements of the 

proffered position. If USCIS receives 

and ranks more registrations at a 

particular wage level than the projected 

number needed to meet the numerical 

limitation, USCIS will randomly select 

from all registrations within that 

particular wage level a sufficient 

number of registrations necessary to 

reach the H–1B advanced degree 

exemption. 

(7) Increase to the number of 

registrations projected to meet the H–1B 

regular cap or advanced degree 

exemption allocations in a fiscal year. 

Unselected registrations will remain on 

reserve for the applicable fiscal year. If 

USCIS determines that it needs to select 

additional registrations to receive the 

number of petitions projected to meet 

the numerical limitations, USCIS will 

select from among the registrations that 

are on reserve a sufficient number to 

meet the H–1B regular cap or advanced 

degree exemption numerical limitation, 

as applicable. If all of the registrations 

on reserve are selected and there are 

still fewer registrations than needed to 

reach the H–1B regular cap or advanced 

degree exemption numerical limitation, 

as applicable, USCIS may reopen the 

applicable registration period until 

USCIS determines that it has received a 

sufficient number of registrations 

projected to meet the H–1B regular cap 

or advanced degree exemption 

numerical limitation. USCIS will 

monitor the number of registrations 

received and will notify the public of 

the date that USCIS has received the 

necessary number of registrations (the 

new ‘‘final registration date’’). The day 

the public is notified will not control 

the applicable final registration date. 

When selecting additional registrations 

under this paragraph, USCIS will rank 

and select properly submitted 

registrations in accordance with 

paragraphs (h)(8)(iii)(A)(1), (5), and (6) 

of this section. If the registration period 

will be re-opened, USCIS will announce 

the start of the re-opened registration 

period on the USCIS website at 

www.uscis.gov. 

* * * * * 

(D) * * * (1) Filing procedures. In 

addition to any other applicable 

requirements, a petitioner may file an 

H–1B petition for a beneficiary that may 

be counted under section 214(g)(1)(A) or 

eligible for exemption under section 

214(g)(5)(C) of the Act only if the 

petition is based on a valid registration 

submitted by the petitioner, or its 

designated representative, on behalf of 

the beneficiary that was selected 

beforehand by USCIS. The petition must 

be filed within the filing period 

indicated in the selection notice. A 

petitioner may not substitute the 

beneficiary named in the original 

registration or transfer the registration to 

another petitioner. 

(i) If a petitioner files an H–1B capsubject petition based on a registration 

that was not selected beforehand by 

USCIS, based on a registration for a 

different beneficiary than the 

beneficiary named in the petition, or 

based on a registration considered by 

USCIS to be invalid, the H–1B capsubject petition will be rejected or 

denied. USCIS will consider a 

registration to be invalid if the 

registration fee associated with the 

registration is declined, rejected, or 

canceled after submission as the 

registration fee is non-refundable and 


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1734 Federal Register / Vol. 86, No. 5 / Friday, January 8, 2021 / Rules and Regulations 

due at the time the registration is 

submitted. 

(ii) If USCIS determines that the 

statement of facts contained on the 

registration form is inaccurate, 

fraudulent, misrepresents any material 

fact, or is not true and correct, USCIS 

may reject or deny the petition or, if 

approved, may revoke the approval of a 

petition that was filed based on that 

registration. 

(iii) USCIS also 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 or revoke 

approval of such 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 selection was based. 

* * * * * 

(iv) * * * 

(B) * * * 

(1) * * * If the final receipt date is any 

of the first five business days on which 

petitions subject to the H–1B regular cap 

may be received, USCIS will select from 

among all the petitions properly 

submitted during the first five business 

days the number of petitions deemed 

necessary to meet the H–1B regular cap. 

If USCIS has received more petitions 

than necessary to meet the numerical 

limitation for the H–1B regular cap, 

USCIS will rank and select the petitions 

received on the basis of the highest 

Occupational Employment Statistics 

(OES) wage level that the proffered wage 

equals or exceeds for the relevant 

Standard Occupational Classification 

(SOC) code 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 the 

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, instead of obtaining an 

OES prevailing wage, a petitioner elects 

to obtain a prevailing wage using 

another legitimate source (other than 

OES) or an independent authoritative 

source. If USCIS receives and ranks 

more petitions at a particular wage level 

than the projected number needed to 

meet the numerical limitation, USCIS 

will randomly select from among all 

eligible petitions within that particular 

wage level a sufficient number of 

petitions needed to reach the numerical 

limitation. 

(2) Advanced degree exemption 

selection in event of suspended 

registration process. After USCIS has 

received a sufficient number of petitions 

to meet the H–1B regular cap and, as 

applicable, completed the selection 

process of petitions for the H–1B regular 

cap, USCIS will determine whether 

there is a sufficient number of 

remaining petitions to meet the H–1B 

advanced degree exemption numerical 

limitation. When calculating the 

number of petitions needed to meet the 

H–1B advanced degree exemption 

numerical limitation USCIS will take 

into account historical data related to 

approvals, denials, revocations, and 

other relevant factors. USCIS will 

monitor the number of petitions 

received and will announce on its 

website the date that it receives the 

number of petitions projected as needed 

to meet the H–1B advanced degree 

exemption numerical limitation (the 

‘‘final receipt date’’). The date the 

announcement is posted will not control 

the final receipt date. If the final receipt 

date is any of the first five business days 

on which petitions subject to the H–1B 

advanced degree exemption may be 

received (in other words, if the 

numerical limitation is reached on any 

one of the first five business days that 

filings can be made), USCIS will select 

from among all the petitions properly 

submitted during the first five business 

days the number of petitions deemed 

necessary to meet the H–1B advanced 

degree exemption numerical limitation. 

If USCIS has received more petitions 

than necessary to meet the numerical 

limitation for the H–1B advanced degree 

exemption, USCIS will rank and select 

the petitions received on the basis of the 

highest Occupational Employment 

Statistics (OES) wage level that the 

proffered wage equals or exceeds for the 

relevant Standard Occupational 

Classification (SOC) code in the area of 

intended employment, beginning with 

OES wage level IV and proceeding with 

OES wage levels III, II, and I. Where 

there is no current OES prevailing wage 

information for the 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 proffered wage 

is 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, instead of obtaining an 

OES prevailing wage, a petitioner elects 

to obtain a prevailing wage using 

another legitimate source (other than 

OES) or an independent authoritative 

source. If USCIS receives and ranks 

more petitions at a particular wage level 

than necessary to meet the numerical 

limitation for the H–1B advanced degree 

exemption, USCIS will randomly select 

from among all eligible petitions within 

that particular wage level a sufficient 

number of petitions needed to reach the 

numerical limitation. 

* * * * * 

(10) * * * 

(ii) Notice of denial. The petitioner 

shall be notified of the reasons for the 

denial and of the right to appeal the 

denial of the petition under 8 CFR part 

103. The petition may be denied if it is 

determined that the statements on the 

registration or petition were inaccurate. 

The petition will be denied if it is 

determined that the statements on the 

registration or petition were 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. A valid registration must 

represent a legitimate job offer. USCIS 

also may deny 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 increase the odds of 

selection during the registration or 

petition selection process, as applicable, 

such as by reducing the proffered wage 

to an amount that would be equivalent 

to a lower wage level than that indicated 

on the original petition. USCIS will not 

deny such 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 or petition selection, as 

applicable, was based. There is no 

appeal from a decision to deny an 

extension of stay to the alien. 

(11) * * * 

(iii) * * * 

(A) * * * 

(2) The statement of facts contained in 

the petition; the registration, if 

applicable; or on the temporary labor 

certification or labor condition 

application; was not true and correct, 


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Federal Register / Vol. 86, No. 5 / Friday, January 8, 2021 / Rules and Regulations 1735 

inaccurate, fraudulent, or 

misrepresented a material fact; or 

(3) The petitioner, or a related entity, 

filed a new or amended petition 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 increase 

the odds of selection during the 

registration or petition selection 

process, as applicable, such as by 

reducing the proffered wage to an 

amount that would be equivalent to a 

lower wage level than that indicated on 

the registration, or the original petition 

if the registration process was 

suspended. USCIS will not revoke 

approval of such 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 or petition selection, as 

applicable, was based; or 

* * * * * 

(24) * * * (i) The requirement to 

submit a registration for an H–1B capsubject petition and the selection 

process based on properly submitted 

registrations under paragraph (h)(8)(iii) 

of this section are intended to be 

severable from paragraph (h)(8)(iv) of 

this section. In the event paragraph 

(h)(8)(iii) is not implemented, or in the 

event that paragraph (h)(8)(iv) is not 

implemented, DHS intends that either of 

those provisions be implemented as an 

independent rule, without prejudice to 

petitioners in the United States under 

this section, as consistent with law. 

* * * * * 

Ian J. Brekke, 

Senior Official Performing the Duties of the 

General Counsel, U.S. Department of 

Homeland Security. 

[FR Doc. 2021–00183 Filed 1–7–21; 8:45 am] 

BILLING CODE 9111–97–P 


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