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Federal Register / Vol. 86, No. 5 / Friday, January 8, 2021 / Rules and Regulations TABLE 3H1B CAP-SUBJECT PETITIONS SUBMITTED TO USCIS FOR FY 2016FY 2020Continued Total number of H-1B cap-subject petitions submitted
Fiscal year
Total number of H-1B
petitions selected
Number of petitions filed with Form G28

2019
2020

190,098
201,011

110,376
109,283

93,495
92,396

Total

1,058,986

509,111

405,826

5-year average

211,797

101,822

81,165

Source: Total Number of H1B Cap-Subject Petitions Submitted FYs 20162020, USCIS Service Center Operations SCOPS, June 2019.
Total Number of Selected Petitions data, USCIS Office of Performance and Qualify OPQ, Performance Analysis and External Reporting PAER, July 2020.

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Table 3 also shows historical Form G28 filings by attorneys or accredited representatives accompanying selected H1B cap-subject petitions. DHS notes that these forms are not mutually exclusive. Based on the 5-year average, DHS estimates 79.7 percent 167 of selected petitions will be filed with a Form G28. Table 3 does not include data for FY 2021 as the registration requirement was first implemented for the FY 2021 H1B cap selection process, and petition submission was ongoing at the time of this analysis.
The H1B selection process changed significantly after the publication of the H1B Registration Final Rule.168 That rule established a mandatory electronic registration requirement that requires petitioners seeking to file cap-subject H1B petitions, including those eligible for the advanced degree exemption, to first electronically register with USCIS
during a designated registration period.
That rule also reversed the order by which USCIS counts H1B registrations or petitions, for any year in which the registration requirement is suspended toward the number projected to meet the H1B numerical allocations, such that USCIS first selects registrations submitted on behalf of all beneficiaries, including those eligible for the advanced degree exemption. USCIS
then selects from the remaining registrations a sufficient number projected as needed to reach the advanced degree exemption. The registration requirement was first implemented for the FY 2021 H1B cap.
During the initial registration period for the FY 2021 H1B cap selection process, DHS received 274,237 registrations.
4. Cost-Benefit Analysis Through these changes, petitioners will incur costs associated with additional time burden in completing the registration process and, if selected 167 Calculation: 81,165 Forms G28/101,822 Form I129 petitions = 79.7 percent 168 See H1B Registration Final Rule, 84 FR 888.

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for filing, the petition process. In this analysis, DHS estimates the opportunity cost of time for these occupations using average hourly wage rates of $32.58 for HR specialists and $69.86 for lawyers.169 However, average hourly wage rates do not account for worker benefits such as paid leave, insurance, and retirement. DHS accounts for worker benefits when estimating the opportunity cost of time by calculating a benefits-to-wage multiplier using the most recent DOL, BLS report detailing average compensation for all civilian workers in major occupational groups and industries. DHS estimates the benefits-to-wage multiplier is 1.46.170
For purposes of this final rule, DHS
calculates the average total rate of compensation as $47.57 per hour for an HR specialist, where the average hourly wage is $32.58 per hour worked and average benefits are $14.99 per hour.171
Additionally, DHS calculates the average total rate of compensation as $102.00 per hour for an in-house lawyer, where the average hourly wage is $69.86 per hour worked and average benefits are $32.14 per hour.172
Moreover, DHS recognizes that a firm may choose, but is not required, to 169 See U.S. Department of Labor, Bureau of Labor Statistics, Occupational Employment Statistics, May 2019 National Occupational Employment and Wage Estimates-National, SOC 131071Human Resources Specialist and SOC 231011Lawyers, https www.bls.gov/oes/2019/may/oes_nat.htm last visited Sept. 2, 2020.
170 The benefits-to-wage multiplier is calculated as follows: $37.10 Total Employee Compensation per hour $25.47 Wages and Salaries per hour = 1.457 = 1.46 rounded. See U.S. Department of Labor, Bureau of Labor Statistics, Economic News Release, Employer Cost for Employee Compensation December 2019, Table 1. Employer Costs for Employee Compensation by ownership Dec. 2019, https www.bls.gov/news.release/archives/ecec_
03192020.pdf last visited Sept. 2, 2020.
171 Calculation of the weighted mean hourly wage for HR specialists: $32.58 per hour 1.46 =
$47.5668 = $47.57 rounded per hour.
172 Calculation of weighted mean hourly wage for in-house lawyers: $102.00 average hourly total rate of compensation for in-house lawyer = $69.86
average hourly wage rate for lawyer in-house
1.46 benefits-to-wage multiplier.

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outsource the preparation and submission of registrations and filing of H1B petitions to outsourced lawyers.173 Therefore, DHS calculates the average total rate of compensation as $174.65, which is the average hourly U.S. wage rate for lawyers multiplied by 2.5 to approximate an hourly billing rate for an outsourced lawyer.174 Table 4
summarizes the compensation rates used in this analysis.

TABLE 4SUMMARY OF ESTIMATED
WAGES FOR FORM I129 FILERS BY
TYPE OF FILER
Hourly compensation rate Human Resources HR
Specialist
In-house lawyer
Outsourced lawyer

$47.57
102.00
174.65

Source: USCIS analysis.

a. Costs and Cost Savings of Regulatory Changes to Petitioners i. Methodology Based on Historic FYs 20192020
This final rule primarily will change the manner in which USCIS selects H1B registrations or H1B petitions for any year in which the registration requirement is suspended, by first 173 DHS uses the terms in-house lawyer and outsourced lawyer to differentiate between the types of lawyers that may file Form I129 on behalf of an employer petitioning for an H1B beneficiary.
174 Calculation of weighted mean hourly wage for outside counsel: $174.65 average hourly total rate of compensation for outsourced lawyer = $69.86
average hourly wage rate for lawyer in-house 2.5
conversion multiplier. DHS uses a conversion multiplier of 2.5 to estimate the average hourly wage rate for outsourced lawyer based on the hourly wage rate for an in-house lawyer. DHS has used this conversion multiplier in various previous rulemakings. The DHS analysis in Exercise of TimeLimited Authority to Increase the Fiscal Year 2018
Numerical Limitation for the H2B Temporary Nonagricultural Worker Program, 83 FR 24905 May 31, 2018, used a multiplier of 2.5 to convert inhouse attorney wages to the cost of outsourced attorney wages.

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