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Federal Register / Vol. 86, No. 5 / Friday, January 8, 2021 / Rules and Regulations
detrimental to U.S. workers.104 As discussed in the NPRM and above, DHS
further believes that the influx of relatively lower-skilled and lower-paid H1B workers is not consistent with the dominant legislative purpose of the statute. Prioritizing registrations based on wage level likely would increase the average and median wage levels of H1B beneficiaries who would be selected for further processing under the H1B allocations. Moreover, it would maximize H1B cap allocations, so that they more likely would go to the best and brightest workers.
Based on its comprehensive review of the submitted comments and available evidence, DHS has concluded that, by changing the selection process, in these years of excess demand, from a random lottery selection to selection generally based on the highest OES prevailing wage level that the proffered wage equals or exceeds, DHS will implement the statute more faithfully to its dominant legislative purpose. DHS
further believes that this will benefit the economy and increase the United States competitive edge in attracting the best and the brightest in the global labor market, consistent with the goals of the H1B program. It may also benefit U.S.
workers as employers that might have petitioned for a cap-subject H1B
worker to fill relatively lower-paid, lower-skilled positions, may be incentivized to hire available and qualified U.S. workers for those positions. DHS believes that the available data and information support this rulemaking and that it is not necessary to gather more data or to restart the regulatory process.
C. Proposed Changes to the Registration Process for H1B Cap-Subject Petitions
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1. Proposed Wage-Based Selection Selection Process for Regular Cap and Advanced Degree Exemption, Preservation of Random Selection Within a Prevailing Wage Comment: A business association commented that adding in a nonrandom variable to the H1B cap selection process would open the door to pre-adjudication, which may add new burdens to the petitioners and USCIS.
The commenter also said the addition of the wage factor may cause potential enforcement or audit actions if USCIS
does not agree with a petitioners 104 See The National Academies of Sciences, Engineering, and Medicine, The Economic and Fiscal Consequences of Immigration 258
Washington, DC: The National Academies Press 2017, https doi.org/10.17226/23550 noting that differing results across certain studies may reflect immigrant heterogeneity generally and among H1B
workers in particular.

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assessment of corresponding wage level, either when adjudicating the petition or in the course of a postadjudication audit. In addition, the commenter said the corresponding wage level listed on the lottery registration would not necessarily match the wage level designated on the Labor Condition Application LCA
form, creating confusion.
Response: DHS disagrees that ranking according to the highest OES prevailing wage level that the proffered wage equals or exceeds will be a preadjudication, as submission of the electronic registration is merely an antecedent procedural requirement to properly file the petition. It is not intended to replace the petition adjudication process or assess substantive eligibility. With respect to new burdens resulting from the additional information provided, these are captured below in section V.
Statutory and Regulatory Requirements.
DHS believes that the additional burden, which is relatively small, is necessary to ensure that USCIS
implements the registration system in a manner that realistically, effectively, efficiently, and more faithfully administers the cap selection process.
DHS acknowledges that the wage level listed by the petitioner on the registration form may not always match the wage level indicated on the LCA.
However, DHS believes that the instructions provided in the registration system and on the H1B petition are sufficiently clear to avoid confusion.
Further, USCIS officers will be sufficiently trained on the reasons why the wage level on the registration form may not always match the LCA, and may request additional evidence from the petitioner, as appropriate, to resolve material discrepancies in this regard.
However, DHS notes that USCIS may deny or revoke a petition if USCIS
determines that the statement of facts contained on the registration form is inaccurate, fraudulent, misrepresents any material fact, or is not true and correct.105
Comment: A professional association noted that DHS proposes to abruptly and unnecessarily change the selection process for H1B cap-subject petitions by prioritizing registrants based on the highest OES prevailing wage level, and consider applicants solely based on the amount of money that they would be paid, rather than the utility that they would bring to the U.S. workforce.
Response: DHS believes that ranking and selecting by the highest OES
prevailing wage level that the proffered 105 See
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wage equals or exceeds is a practical way to achieve 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. As stated previously, the new ranking system takes into account the wage level relative to the SOC code and areas of intended employmentas opposed to salary alonewhen ranking registrations. While DHS agrees that the utility an H1B beneficiary brings to the U.S. workforce is important, there is no practical, objective way to measure utility such that DHS could use this quality to rank and select H1B
registrations or petitions.
2. Required Information From Petitioners a. OES Wage Level i. Highest OES Wage Level That the Proffered Wage Would Equal or Exceed Comments: Several commenters said DHS should rank registrations at OES
prevailing wage level I separate from those falling below OES prevailing wage level I, so that registrations who meet wage level I are prioritized for H1B
selection over those falling below level I. Some commenters noted that the DOL
IFR placed the level I wage at the 45th percentile close to previous level III, creating vast differentiation within this large group. Therefore, the benefits of the rule of differentiating candidates would fail for at least 90 percent of registrations, as the DOL IFR would result in the prevailing wage level I and below group being much larger and DHS
needing to select from that group completely at random. With that lack of differentiation, the new rule would not accomplish its purpose of retaining the best talent. Therefore, these commenters urged DHS to consider separating those registrations at or above level I wages from those falling below, as opposed to putting them into one giant group.
Response: DHS does not agree with the suggestions to separate OES wage level I from a wage below level I. DHS
expects that all petitioners offering a wage lower than the OES wage level I
wage will be using another legitimate source other than OES or an independent authoritative source, including a private wage survey.
Therefore, such a change effectively could preclude petitioners that utilize one of those other sources from being selected for registration. By grouping OES wage level I and below together, those petitioners have a fair chance of selection and are not precluded from using a private wage survey as appropriate. Since the DOL IFR was set
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