Quiero saber acerca de...

tkelley on DSKBCP9HB2PROD with RULES3

1698

Federal Register / Vol. 86, No. 5 / Friday, January 8, 2021 / Rules and Regulations
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 H1B
petitions and the administration of the H1B numerical allocations, both of which are within DHSs 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 H1B 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 H1B
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. 20cv7331, 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.
20cv14604, 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 commenters 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 H1B 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 H1B process similar to that of the O1 visa, but that
VerDate Sep<11>2014

23:18 Jan 07, 2021

Jkt 253001

Congress knowingly avoided doing so in 1990. According to the commenter, the new rule, in effect, is redrafting the 1990
legislation to make the H1B visa more closely resemble the O1 visa and Congress certainly could have ranked H1Bs in 1990 if it wanted to do so.
Other commenters also noted that the O1 visa is for those with extraordinary ability, not those just starting their careers, and that the H1B program serves different purposes. Another commenter also cited a House sponsor of the H1B program as saying that the O1 program, not H1B, was the best and brightest program.
Response: DHS disagrees with the claim that it is reforming the H1B
classification to more closely resemble the O1 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 H1B
classification and is not, in any way, reforming the H1B classification to more closely resemble the O1
classification. This final rule merely fills in a statutory gap regarding how to administer the H1B numerical allocations in years of excess demand.
The statute provides annual limitations on the number of aliens who may be issued initial H1B visas or otherwise provided H1B 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 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. 90 The current scheme of pure randomization of selectees does not optimally serve Congress purpose for the H1B
program. Therefore, this rule will revise the H1B cap selection process to better align with the purpose of the H1B
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 89 The O1 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 101a15O, 8 U.S.C.
1101a15O; 8 CFR 214.2o.
90 See Walker Macy, 243 F.Supp.3d at 1176.

PO 00000

Frm 00024

Fmt 4701

Sfmt 4700

sought to alter the selection process by ranking H1Bs 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 H1B 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 H1B 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 H1B
cap-subject petitions, including those filed for the advanced degree exemption, consistently exceeding annual statutory allocations.
Although Congress instructed that cap-subject H1B visas or H1B
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 H1B program help U.S. employers fill labor shortages in positions requiring highly skilled workers.91
91 H.R. Rep. 101723I 1990, as reprinted in 1990 U.S.C.C.A.N. 6710, 6721 stating The U.S.

E:FRFM08JAR3.SGM

08JAR3