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

Certification Data Center Online Wage Library 109 at https
www.flcdatacenter.com/ with the correct prevailing wage data for each SOC and area of intended employment through June 30, 2021.110
While prevailing wage level data remains unavailable for some SOC
codes in some areas of intended employment, DHS believes that its solution in that limited circumstance, as proposed in the NPRM and retained in this final rule, still will allow DHS to select registrations according to the metric of the registrants self-identified prevailing wage level as calculated using DOLs prevailing wage level guidance.111 DHS recognizes that this solution is imperfect as it does not provide a means for those registrants to proffer wages that equal or exceed higher prevailing wage levels than those commensurate with the position requirements. However, DHS concludes that it is the best available option to serve the overarching goal of revising the selection process to ensure that H1B petitions are filed for positions requiring relatively higher skill levels or proffering wages commensurate with higher skill levels. The commenters statements that limitations in OES data would cause the population of H1B
physicians to be paid equally regardless of skill or experience, or that such limitations undermine the premise that higher skill level positions must be paid higher wages, is beyond the scope of this rulemaking. This rule does not require an employer to pay a certain wage. This rule merely pertains to ranking and selection of registrations or petitions, as applicable, based on corresponding wage level. In the limited instance where OES data is unavailable, the registrant would follow DOL
guidance on prevailing wage determinations to determine which OES
wage level to select on the registration, notwithstanding the proffered salary.
109 The Foreign Labor Certification Data Center, a component of the U.S. Department of Labor Office of Foreign Labor Certification, is the location of the Online Wage Library for prevailing wage determinations. U.S. Department of Labor, Foreign Labor Certification Data Center, Online Wage Library, https www.flcdatacenter.com/ last visited Dec. 15, 2020.
110 DOL, Employment and Training Administration, Foreign Labor Certification, Announcements https www.dol.gov/agencies/eta/
foreign-labor last visited Dec. 21, 2020.
111 U.S. Department of Labor, Employment and Training Administration, Prevailing Wage Determination Policy Guidance, Nonagricultural Immigration Programs Revised Nov. 2009, https
www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/
NPWHC_Guidance_Revised_11_2009.pdf.

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ii. Highest OES Wage Level When There Is No Current OES Prevailing Wage Information Comment: A business association commented that, although using the prevailing wage worksheet to determine wage level makes sense, there is no way to escalate to a higher corresponding wage level by paying more, unlike when an OES wage is used. The commenter added that the unavailability of an OES
wage may be an indication that a job is new or novel, and therefore may be even more in need of H1B workers to fulfill employment needs.
Response: DHS recognizes that some occupations do not have current OES
prevailing wage information available on DOLs Online Wage Library. In the limited instance where there is no current OES prevailing wage information for the proffered position, the registrant would follow DOL
guidance on prevailing wage determinations to determine which OES
wage level to select on the registration.
While petitioners may not be able to increase their chance of selection by increasing the proffered wage, they can increase their chance of selection by petitioning for positions requiring higher skill, experience, or education levels.
DHS believes that, in the absence of current OES prevailing wage information, selecting according to wage level is the best way to ensure that registrations or petitions are selected consistent with the primary purpose of the H1B program, which is to help U.S.
employers fill labor shortages in positions requiring highly skilled or highly educated workers. DHS data shows a correlation between higher salaries and higher wage levels.112 Thus, even in those limited instances where no OES prevailing wage information is available, DHS believes that selecting according to wage level is likely to result in selection of the highest-paid or highest-skilled beneficiaries, consistent with the goals of the H1B program.
DHS will not comment on whether the unavailability of OES wage indicates that a job is new, novel, or in more demand, as that is outside the scope of this rule.
Comment: One commenter asked, where the OES wage levels are missing, what penalties, if any, will be applied to petitioners or beneficiaries if USCIS
112 For example, in Computer and Mathematical Occupations, the 2019 national median salary for level I was $78,000; for level II was $90,000; for level III was $115,000; and for level IV was $136,000. Department of Homeland Security, USCIS, Office of Performance and Quality, SAS
PME C3 Consolidated, VIBE, DOL OFLC TLC
Disclosure Data queried 9/2020 TRK 6446.

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disagrees with the wage level selected by the petitioner after selection has occurred.
Response: DHS expects each registrant would be able to identify the appropriate SOC code for the proffered position because all petitioners are required to identify the appropriate SOC
code for the proffered position on the LCA, even when there is no applicable wage level on the LCA. Using the SOC
code and established DOL guidance, all prospective petitioners would be able to determine the appropriate OES wage level for purposes of completing the registration or petition, as applicable, regardless of whether they were to specify an OES wage level or utilize the OES program as the prevailing wage source on an LCA.
During the adjudication process, if USCIS disagrees with the wage level selected by the petitioner, USCIS will comply with 8 CFR 103.2b8 and may provide the petitioner an opportunity to explain the selected wage level, as applicable. If USCIS determines that the petitioner failed to meet its burden of proof in establishing that it selected the appropriate SOC code for the position, or if USCIS determines that the petition was not based on a valid registration e.g., if there is a discrepancy in wage levels between the registration and the petition, USCIS may deny the 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, USCIS may reject or deny the petition or, if approved, may revoke the approval of a petition that was filed based on that registration.113
If USCIS determines that the statement of facts contained in the petition or on the LCA was not true and correct, inaccurate, fraudulent, or misrepresented a material fact, USCIS
may revoke the approval of that petition.114
Comment: A professional association stated that, because the registration system does not contemplate a real-time adjudication of whether occupations lacking current OES prevailing wage information are correctly slotted under USCIS selection system, there would be no fail-safe mechanism for employers to confirm that the wage-preference selection process in fact operated as USCIS predicted in the proposed rule.
The commenter stated that, before any further rule is published, DHS, DOL and OMB should investigate and determine whether any proposed wage-preference H1B selection process relying upon 113 See 114 See
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new 8 CFR 214.2h8iiiD1ii.
8 CFR 214.2h11iiiA2.

08JAR3