USCIS Notice of Creating Wage Level Selection Process for H-1Bs

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On October 28, 2020, Department of Homeland Security (DHS) proposed to replace the H-1B CAP random selection process with a wage-based selection process 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. The proposed rule was published on November 2, 2020 and comments on the rule must be submitted on or before December 2, 2020.

Please note that this rule will NOT take effect until a Final Rule is published and made effective.

The following is a list of some of the key provisions of the proposed rule:

  • If more registrations are received during the annual initial registration period than necessary to reach the applicable numerical allocation, USCIS will rank and select the registrations received 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.

  • If the 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 as OES level I.

  • After completion of the selection process for the regular 65,000 H-1B cap, USCIS will utilize the same ranking and selection process to meet the advanced-degree exemption if a sufficient number of registrations were submitted during the annual initial registration period to reach the advanced-degree exemption.

  • If USCIS receives and ranks more registrations at a particular wage level than the projected number needed to meet the applicable numerical allocation, USCIS will randomly select from all registrations within that particular wage level to reach the applicable numerical limitation.

  • If the H-1B beneficiary will work in multiple locations, USCIS will rank and select the registration based on the lowest corresponding OES wage level that the proffered wage will equal or exceed.

  • Where there is no current OES prevailing wage information for the proffered position, USCIS will rank and select the registration based on the OES wage level that corresponds to the requirements of the proffered position.

  • The electronic registration form (and the H-1B petition) will be amended to require provision of the highest OES wage level that the proffered wage equals or exceeds for the relevant SOC code in the area of intended employment.

  • USCIS may deny or revoke approval of a subsequent new or amended H-1B 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.

For more information, please see AILA’s press statement on this proposed rule. Iandoli Desai & Cronin will continue to monitor the situation and provide updates as the new rule progresses through the Notice and Comment period.