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Federal Register / Vol. 86, No. 5 / Friday, January 8, 2021 / Rules and Regulations
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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 H1B program to fill labor shortages in positions requiring highly skilled workers. Contrary to the commenters 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 H1B
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 administrations 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 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.
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 H1B
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 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.
94 See 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.

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is not necessarily correlated to age. DHS
also disagrees with the commenters 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 H1B
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 H1B classification.
2. Substantive Comments on the Need for the Rule/DHS Justification Comments: An anonymous commenter wrote that the proposed rules wage standard for H1B visa eligibility is arbitrary and capricious.
The commenter said that DHS does not explain the rationale behind making wages the sole indicator of a workers eligibility for visa sponsorship. The commenter also argued that the rules rationale is flawed because it would not protect U.S. workers, since the H1B
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 H1B 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 workers eligibility for H1B visa sponsorship and does not otherwise change the substantive standards for H1B
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 H1B
cap-subject petition emphasis added.95
Even if registration were suspended, the rule merely revises how USCIS would select H1B cap-subject petitions toward the H1B 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 commenters assertion that the rule would not better 95 85 FR 69236, 69243. See also H1B 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..

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protect U.S. workers. As explained in response to other comments, prioritizing the selection of H1B 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 H1B workers and disincentivize the existing widespread use of the H1B 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 H1B workers and will incentivize H1B 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 H1B
program was designed to fill entry-level jobs at entry-level wages, and prioritizing H1B petitions at high wage levels will safeguard U.S. wage standards and increase labor efficiency.
The commenter went on to state that prioritizing higher H1B 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 H1B 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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