Quiero saber acerca de...

1700

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

architects are professionals performing specialty occupations. A professional association stated that the salaries associated with each wage level do not fully capture an individuals 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 H1B 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 H1B
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 H1B 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 96 U.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 Wagesas expected, higher skills levels
VerDate Sep<11>2014

23:18 Jan 07, 2021

Jkt 253001

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 beneficiarys value to the employer, which, even if not related to the positions 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 beneficiarys 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 H1B visas subject to the numerical allocations, the current process of random selection does not optimally serve Congress purpose for the H1B program. Instead, in years of excess demand, selection of H1B 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 H1B program and with the administrations goal of improving policies such that H1B classification is more likely to be awarded to petitioners seeking to employ higher-skilled and higher-paid beneficiaries.97
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..
97 See 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 H1Bs on firms in which H1Bs crowd out alternative workers, are paid less than the alternative workers whom they crowd out, and thus increase the firms profits despite no measurable effect on innovation; John Bound et al., Understanding the Economic Impact of the H1B
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..

PO 00000

Frm 00026

Fmt 4701

Sfmt 4700

DHS does not agree that the rule will limit or restrict the number of H1B
workers, and that is not the rules 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 H1B worker makes more than H2 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 NPRMs 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 H1B 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 commenters assertions. Regarding the H2 program, DHS disagrees that the administrations policies have been inconsistent, as these programs serve different purposes. As DHS has stated above and in the NPRM, the intent of the H1B 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 H1B workers shows declining enrollment in STEM fields by U.S. students, and does not agree with the commenters assessment regarding insufficient U.S. workers.98 Actually, 98 See 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/bp359guestworkers-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
E:FRFM08JAR3.SGM

08JAR3