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Federal Register / Vol. 86, No. 5 / Friday, January 8, 2021 / Rules and Regulations levels and there has not been any economic impact analysis based on the new wage rules. One commenter expressed that this rule must be read in concert with the DOL IFR, which reset how prevailing wage levels were calculated for H1Bs. To get selected in the H1B registration process under the proposed rule, the employer would have to pay a level III or IV prevailing wage, but those wages would be so artificially high that employers would not be able to pay them. The commenter concluded that DHS should push the proposed rule back at least one year to allow time for next years H1B data to become available. Another commenter said 96
percent of total applicants still would fall into the new OES wage level 1
below and would be eligible for random selection, so the proposed rule would not have an impact. A
commenter echoed concerns about the use of previous OES wage levels, writing that DHSs analysis in the proposed rule was invalid.
Response: The NPRM analysis was written using the appropriate baseline and the best information that was available to DHS at that time, which was prior to the publication of the DOL
IFR.143 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 no longer is implementing the DOL
IFR. DHS, therefore, disagrees with the commenters assertion that DHS must analyze the DOL IFR in the context of this final rule. This final rule does not require employers pay a higher wage, instead it prioritizes selection of registrations or petitions, as applicable, generally based on the highest OES
prevailing wage level that the proffered wage equals or exceeds for the relevant SOC code and areas of intended employment. The selection of H1B
registrations or petitions, as applicable, will be based on the existing OES wage levels at the time of submission, and the economic analysis in the proposed rule properly accounted for OES prevailing wage levels that were in effect at the time the analysis was conducted and remain in effect at this time.
Comments: An anonymous commenter stated that Table 13 of the 143 See
DOL IFR, 85 FR 63872.

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NPRM is inconsistent with the proposed rules language. The commenter questioned why there would be level III
and IV registrations selected in the advanced degree exemption if level III
and IV registrations would be 100%
selected in the regular cap, and the proposed rule would not affect the order of selection between the regular cap and advanced degree exemption.
Response: This final rule will not affect the order of selection between the regular cap and advanced degree exemption or the number of registrations that will be selected for each allocation. USCIS first selects registrations toward the number projected as needed to reach the regular cap, from among all registrations properly submitted, including those indicating that the beneficiary will be eligible for the advance degree exemption. USCIS then selects registrations indicating eligibility for the advanced degree exemption using the same process. With the revised selection method based on corresponding OES
wage level and ranking shown in Table 13, the approximated average indicates that all registrations with a proffered wage that corresponds to OES wage level IV or level III would be selected and 58,999, or 75 percent, of the registrations with a proffered wage that corresponds to OES wage level II would be selected toward the regular cap projections. None of the registrations with a proffered wage that corresponds to OES wage level I or below would be selected toward the regular cap projections. For the advanced degree exemption, DHS estimates all registrations with a proffered wage that corresponds to OES wage levels IV and III would be selected and 12,744, or 20
percent, of the registrations with a proffered wage that corresponds to OES
wage level II would be selected. DHS
estimates that none of the registrations with a proffered wage that corresponds to OES wage level I or below would be selected.
Comments: A couple of commenters wrote that DHS took wage levels specified as N/A and consolidated them with level I wages in its Table 7
calculations even though there is no evidentiary basis for assuming that characterization or correlation to be accurate or appropriate. Wages negotiated under a collective bargaining agreement often exceed market rates, and private wage surveys frequently have more than 4 wage levels, which makes direct analogy to OES
impractical, if not impossible. Since there was no way to determine the true ranking of the N/A petitions, they should have been excluded from the
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allocation rather than arbitrarily added to the level I share. Consolidating them had the prejudicial effect of attributing 31.5 percent of regular cap and 37
percent of advanced degree cap to level I, when, in fact, those numbers would have been 22.8 percent and 27.5
percent, respectively, had level I counts not included the petitions whose wage level was N/A. An individual commenter similarly wrote that DHSs analysis incorrectly claims that a number of petitions are categorized as having a wage level of N/A due to modifications to DOLs SOC structure in 2018. The commenter stated that all FY
2019 and FY 2020 petitions were filed using the 2010 SOC structure and thus the 2018 SOC structure would not impact those petitions. The commenter said that the N/A designations are likely because Question 13 on Form 9035 only requires a designation of OES wage levels when relying on a prevailing wage and is left blank when petitions rely on a permissible alternative. This commenter also stated that, according to DHSs analysis in Table 6, the OES
Wage Level was unavailable about 12
percent of the time for cap-subject H1B
petitions selected for adjudication in FYs 2019 and 2020. DHS labels these petitions as ones where the OES Wage Level is N/A and then, curiously, includes all such N/A OES Wage Level petitions as level I petitions for purposes of its analysis when they are not particularly likely to be all or mostly level I jobs.
Response: DHS understands and agrees with the commenter that N/A
designations are likely when registrants rely on a permissible alternative private wage source that is not based on the OES survey. For these registrants choosing to rely on a prevailing wage that is not based on the OES survey, if the proffered wage is less than the corresponding level I OES wage, the registrant would select the Wage Level I and below box on the registration form. DHS deliberately chose to group these registrations together with level I
registrations so that petitioners relying on non-OES sources would have a fairer chance of selection than if they were ranked below level I registrations, and to avoid penalizing prospective petitioners who properly rely on a private wage survey to determine the required wage for the proffered position.
As explained in response to other comments, DHS does not agree with the suggestions to separate OES prevailing wage level I from those falling below level I. DHS expects that all petitioners offering a wage lower than the OES
wage level I wage will be using a legitimate source other than OES or an
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