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Federal Register / Vol. 86, No. 5 / Friday, January 8, 2021 / Rules and Regulations
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job offer; 129 and the new or amended petition is nonfrivolous.130
Further, DHS notes that, under the current registration system, the petitioner identified at the registration stage must match the petitioner of the subsequently filed petition. 8 CFR
214.2h8iiiD states that a petitioner may not substitute the beneficiary named in the original registration or transfer the registration to another petitioner. This rule has not changed this requirement. Accordingly, USCIS
may deny an H1B cap-subject petition if an entity other than the petitioner identified at the registration stage, including a related entity, files the petition.
Comment: An individual suggested allowing future H1B extensions or renewals only with a wage level that is equal or greater than the wage level selected in the lottery for the first time.
Response: H1B extensions or renewals are not impacted by this rule, and DHS declines to impose a universal requirement that all extension or renewal requests must be for a position at the equal or greater wage level.
Employers are permitted to file an extension petition requesting continuation of previously approved employment without change with the same employer, which most likely involves a position at the same wage level. Furthermore, employers are permitted to file extension or amended petitions requesting new employment, change in previously approved employment, new concurrent employment, change of employer, or amended employment. All of these petition types could involve positions with different SOC codes, which makes a straight comparison of wage levels impractical.
However, under new 8 CFR
214.2h10ii, USCIS may deny a subsequent new or 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 increase the odds of selection during the registration or petition selection process, as applicable, such as by reducing the proffered wage to an amount that would be equivalent to a 129 See new 8 CFR 214.2h10ii A valid registration must represent a legitimate job offer.;
U.S. Department of Homeland Security, U.S.
Citizenship and Immigration Services, Policy Memorandum PM6020114, Rescission of Policy Memoranda June 17, 2020, https www.uscis.gov/
sites/default/files/document/memos/PM-602-0114_
ITServeMemo.pdf A bona fide job offer must exist at the time of filing the H1B petition..
130 See 8 CFR 214.2h2iH.

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lower wage level than that indicated on the original petition.
Comment: An individual commenter said that the formal certification requirement, whereby the petitioners authorized signatory certifies that the proffered wage on the petition will equal or exceed the wage level on the applicable registration, does not recognize that registrations are submitted in March for a fiscal year beginning the following October.
Therefore, particularly in years such as FY 2021 where there is a second round of selections, H1B cap petitions may be filed after OES wages have changed. The commenter said the new question added to the registration seems to address this concern, by specifying as of the date of this submission . . . , but the formal certification that is binding on the employer does not make this distinction, which could lead to unnecessary and inappropriate liability.
The commenter said that the certification should be revised to reflect only an attestation that the wage will equal or exceed the prevailing wage, in effect at the time of submission, that is associated with the wage level selected in the registration.
Response: DHS thanks the commenter, but declines to adopt the suggestion. As the commenter notes, the registration form makes sufficiently clear that the information provided on the registration is as of the date of submission of this registration. DHS
believes that further changes to the form are unnecessary and could potentially lead to gaming of the registration system.
3. Requests for Comments on Alternatives Comment: A research organization and a labor union recommended having staggered filing deadlines for petitions by wage levels as an alternative in case the proposed rule is met with legal challenges. Under this alternative, USCIS could have a first filing period, where only petitions with jobs paying level IV are considered. Once all the level IV petitions are submitted and approved, then a second filing period at a later date could be set to receive only petitions with jobs paying level III
wages. After those are collected and approved, if there are any visas remaining under the H1B cap, then a filing period for level II wages would be next, and finally a filing period for level I. This way, all of the petitions would not be submitted at once, thereby still allowing DHS to adjudicate and allocate petitions in the order in which they were filed, as the statute requires. If there were more petitions than available
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H1B slots at a particular wage level, there could be a mini-lottery within that wage level.
Response: DHS appreciates the commenters suggestions to use staggered filing deadlines. However, DHS believes it is not necessary to create staggered filing deadlines since, as stated in the NPRM and as explained above, this rule is consistent with and permissible under DHSs general statutory authority provided in INA
sections 103a, 214a and c, 8 U.S.C.
1103a, 1184a and c, and HSA
section 102, 6 U.S.C. 112.131 Further, DHS believes that staggered filing deadlines may create operational challenges for managing the cap and adjudicating petitions in a timely manner. Staggered filing periods could also have unintended consequences for petitioners filing H1B cap-subject petitions for beneficiaries who are in F
1 status and seeking a change of status.132 Therefore, DHS declines to adopt this suggestion.
Comment: One commenter suggested using only the beneficiarys annual wage to prioritize the selection of registrations.
Response: DHS appreciates the commenters suggestion to prioritize selection based on annual wage.
However, DHS believes that selecting registrations or petitions, as applicable, solely based on the highest salary would unfairly favor certain professions, industries, or geographic locations.
Therefore, DHS believes that prioritizing generally based on the highest OES
wage level that the proffered wage equals or exceeds for the relevant SOC
code and in the area of intended employment is the better alternative.
Comment: Several commenters were concerned about the possibility of abuse by companies who would offer parttime positions at greater hourly wages, but would reduce overall working hours, to increase their chance of selection. Other commenters expressed similar concerns about potential abuse of part-time positions, indicating that review should be stricter for part-time H1B applicants.
Response: This final rule authorizes USCIS to reject or deny a petition or, if approved, revoke the approval of a petition, if the statement of facts contained on the registration form is inaccurate, fraudulent, misrepresents any material fact, or is not true and correct.133 Similarly, this final rule authorizes USCIS to deny or revoke approval of a subsequent new or 131 85

FR 69236, 69242.
8 CFR 214.2f5vi.
133 See new 8 CFR 214.2h8iiiD1ii.
132 See
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