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Federal Register / Vol. 86, No. 5 / Friday, January 8, 2021 / Rules and Regulations
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DHS disagrees with the assertion that this rule will exclude entry-level workers. This final rule merely revises how USCIS will select H1B cap-subject petitions toward the H1B 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 H1B 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 H1B numerical allocations when the number of submitted petitions exceeds the numerical allocation. Such circumstances did not exist at the infancy of the H1B 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 H1B
cap-subject registrations or petitions, as applicable, toward the H1B 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, H1B 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 DHSs 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 101649, 104 Stat. 4978, the 75 U.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.
76 U.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.

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creation of the H1B classification for specialty occupation workers, and the implementation of a numerical limitation on H1B 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 INAs language, but that the proposed methodology would impermissibly deviate from the INA.
Similarly, a company stated that Congress guiding principal for selecting H1B 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 H1B 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 DHSs general statutory authority provided in INA sections 103a, 214a and c, 8 U.S.C. 1103a, 1184a and c, and HSA section 102, 6 U.S.C.
112.77 DHS created the registration requirement, based on its general 77 See
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85 FR 69236, 69242.

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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 H1B cap selection process. Congress expressly authorized DHS to determine eligibility for H1B classification upon petition by the importing employer, and to determine the form and information required to establish eligibility.78
Moreover, INA section 214g3 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. 79 Rather, 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 H1B visas or otherwise provided H1B 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 H1B 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 USCISs obligations under the INA to resolve the issues of processing H1B petitions 81 in years of excess demand and is within DHSs 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 78 See INA section 214c1, 8 U.S.C. 1184c1.
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..
79 See 243 F.Supp.3d at 1175.
80 See 243 F.Supp.3d at 1176.
81 See 243 F.Supp.3d at 1175.
82 See 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 We cannot, in the absence of an unmistakable directive, construe the
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