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Federal Register / Vol. 86, No. 5 / Friday, January 8, 2021 / Rules and Regulations
amended petition filed by the petitioner, or a related entity, on behalf of the same beneficiary, if USCIS determines that the filing of the new or amended petition is part of the petitioners attempt to unfairly decrease the proffered wage to an amount that would be equivalent to a lower wage level, after listing a higher wage level on the registration to increase the odds of selection.134 Thus, if USCIS finds that an employer misrepresented the parttime or full-time nature of a position, the number of hours the beneficiary would work, or the proffered salary, then USCIS could deny or revoke the petition. The ability to deny or revoke approval of an H1B petition in this context will militate against registrants and petitioners attempting to abuse the H1B cap selection process through misrepresentation.
Comment: One commenter suggested that, if USCIS were to receive and rank more registrations or petitions, in any year in which the registration process is suspended at a particular prevailing wage level than the projected number needed to meet the numerical limitation, then USCIS should rank and choose registrations by the highest prevailing wage within that wage level.
Another commenter stated that visas should be allocated by the prevailing wage, even within each level.
Response: DHS does not believe that selecting the highest prevailing wage within a wage level is a better alternative to randomly selecting within a single wage level when USCIS
receives more registrations or petitions, in any year in which the registration process is suspended at a particular prevailing wage level than the projected number needed to meet the numerical limitation. DHS prefers to give all registrations ranked at the particular wage level the same chance of selection because those registrations generally would represent workers at the same skill level. If DHS were to select the highest prevailing wage within a wage level, that could unfairly advantage registrations or petitions for positions in higher-paying metropolitan areas or occupations.
Comment: One commenter suggested giving preference to beneficiaries with U.S. degrees. Another commenter stated that DHS should consider adding an advantage to candidates who receive a U.S. education as this will benefit U.S.
institutions of higher education.
Response: DHS declines to adopt the commenters suggestions. Registrations or petitions, as applicable, submitted for beneficiaries who have earned a 134 See
new 8 CFR 214.2h8iiiD1iii.

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masters or higher degree from a U.S.
institution of higher education already have a higher chance of selection through the administration of the selection process. DHS reversed the order in which USCIS selects registrations or petitions, as applicable, which was expected to result in an increase in the number of H1B
beneficiaries with a masters degree or higher from a U.S. institution of higher education selected by up to 16 percent each year 135 and resulted in an 11
percent increase in FY 2020.136
Comment: Some commenters said that DHS should consider ranking by years of experience, rather than by wage. One commenter asked DHS to give an advantage to candidates who have work experience in the United States.
Response: DHS declines to adopt these alternatives, as ranking by years of experience would not best accomplish the goal of attracting the most highly skilled workers. DHS believes that salary, relative to others in the same occupational classification and area of intended employment, rather than years of experience, is generally more indicative of skill level and the relative value of the worker to the United States.
Comment: A few commenters said that DHS should consider providing quotas for each wage level, rather than simply ranking and selecting in descending order by wage levels. Other commenters suggested setting a limit or quota on the number of registrations submitted by certain types of employers, such as staffing agencies or H1B
dependent companies. Another commenter supported measures to prevent staffing companies from filing multiple registrations for offshore workers and stated that companies should not be able to submit more than one registration per beneficiary. Another commenter stated that it is crucial to regulate consulting companies and staffing agencies.
Response: DHS declines to pursue the alternative of setting quotas for each wage level or for certain types of companies as this alternative would not best accomplish the goal of attracting the most highly skilled workers. With respect to comments about prohibiting staffing companies from filing multiple registrations, DHS declines to adopt the commenters suggestions as DHS
regulations already prohibit an 135 H1B

Registration Final Rule, 84 FR 888, 890.
Department of Homeland Security, U.S.
Citizenship and Immigration Services, DHS
Proposes Minimal Registration Fee for Petitioners Seeking to File H1B Cap-Subject Petitions Sept. 3, 2019, https www.uscis.gov/news/alerts/dhsproposes-minimal-registration-fee-for-petitionersseeking-to-file-h-1b-cap-subject-petitions.
136 U.S.

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employer from submitting more than one registration per beneficiary in any fiscal year.137 Comments about the need to further regulate consulting and staffing companies are outside the scope of this final rule.
Comment: A few commenters suggested that DHS prohibit multiple H1B petitions for the same beneficiary by different employers.
Response: DHS regulations already prohibit a petitioner, or related entities, from submitting more than one H1B
cap-subject petition for the same beneficiary in the same fiscal year, absent a legitimate business need.138
Because registration is not intended to replace the petition adjudication process or to assess eligibility, USCIS
cannot feasibly determine at the registration stage whether different entities that submit registrations on behalf of the same beneficiary are related or have a legitimate business need. Further, INA section 214g7, 8
U.S.C. 1184g7, allows for multiple petitions to be approved for 1 alien.
For these reasons, DHS declines to adopt the commenters suggestion.
Comment: One commenter stated that DHS should consider increasing the numerical cap exemption for beneficiaries who have earned a masters or higher degree from a U.S.
institution of higher education as most of the highly skilled positions do not depend entirely on the number of years of experience, but on the higher education degree requirements.
Response: This rule does not affect either the statutorily mandated annual H1B numerical limitation of 65,000 on the number of aliens who may be issued initial cap-subject H1B visas or otherwise provided initial H1B status, or the annual cap exemption for 20,000
aliens who have earned a masters or higher degree from a U.S. institution of higher education.139 As the numerical allocations are set by statute, DHS lacks the authority to adopt the commenters suggestion.
Comment: An individual suggested DHS implement a market based cap and selection system by first identifying areas of the job market, like medical workers, that are most in need at the moment and, from there, ranking by wage or wage level.
Response: DHS believes that identifying areas of the job market that are most in need is not feasible, as it is subjective and would be subject to constant change. This rule is not a 137 See
8 CFR 214.2h8iiiA2.
8 CFR 214.2h2iG.
139 See INA section 214g1A and 5C, 8
U.S.C. 1184g1A and 5C.
138 See
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