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Federal Register / Vol. 86, No. 5 / Friday, January 8, 2021 / Rules and Regulations selecting registrations generally based on the highest OES wage level that the proffered wage equals or exceeds for the relevant SOC code and areas of intended employment. In April 2019, DHS added an electronic registration requirement for petitioners seeking to file H1B petitions on behalf of capsubject aliens.175 Under the current regulation, all petitioners seeking to file an H1B cap-subject petition must first electronically submit a registration for each beneficiary on whose behalf they seek to file an H1B cap-subject petition, unless the registration requirement is suspended. If the registration is selected, the petitioner is eligible to file an H1B cap-subject petition for the beneficiary named in the selected registration during the associated filing period. The registration requirement was suspended for the FY
2020 H1B cap and first implemented for the FY 2021 H1B cap. The initial H1B registration period for the FY
2021 H1B cap was March 1, 2020, through March 20, 2020. A total of
274,237 registrations were submitted during the initial registration period, of which 123,244 176 registrations were for beneficiaries eligible for the advanced degree exemption and 145,950 were for beneficiaries under the regular cap.177
Prior to implementing the registration requirement, USCIS administered the H1B cap by projecting the number of petitions needed to reach the numerical allocations. H1B cap-subject petitions were randomly selected when the number of petitions received on the final receipt date exceeded the number projected as needed to reach the numerical allocations. All petitions eligible for the advanced degree exemption had an equal chance of being selected toward the advanced degree exemption, and all remaining petitions had an equal chance of being selected toward the regular cap. In FY 2019, USCIS first selected petitions toward the number of petitions projected as needed to reach the advanced degree exemption. If the petition was not selected under the advanced degree
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exemption, those cases then were added back to the pool and had a second chance of selection under the regular cap. In FY 2020, the selection order was reversed, such that USCIS first selected petitions toward the number projected as needed to reach the regular cap from among all petitions received. USCIS
then selected toward the number of petitions projected as needed to reach the advanced degree exemption from among those petitions eligible for the advanced degree exemption, but that were not selected toward the number projected as needed to reach the regular cap.
Table 5 shows the number of petitions submitted and selected in FYs 2019 and 2020. It also displays the approximated 2-year averages of the petitions that were submitted and selected for the H
1B regular cap or advanced degree exemption. On average, DHS selected 56
percent 178 of the H1B cap-subject petitions submitted, with 82,900 toward the regular cap and 26,930 toward the advanced degree exemption.

TABLE 5H1B CAP-SUBJECT PETITIONS SUBMITTED TO USCIS, FOR FY 2019FY 2020
Total number of H1B cap-subject petitions submitted
Fiscal year
Total petitions selected
Regular cap
Advanced degree exemption
2019
2020

190,098
201,011

110,376
109,283

82,956
82,843

27,420
26,440

Total
2-Year Average

391,109
195,555

219,659
109,830

165,799
82,900

53,860
26,930

Source: USCIS, Office of Policy and Strategy, Policy Research Division PRD, Claims 3. July 21, 2020 & USCIS Analysis
DHS does not have data on the OES
wage levels for selected petitions prior to FY 2019.179 While there are some challenges to using OES wage data as a timeseries, DHS uses the wage data to provide some insight.180 Table 6 shows the petitions that were selected for FYs 2019 and 2020, categorized by OES
wage level. The main difference between the FY 2019 and FY 2020 data sets is that there are more petitions classified as not applicable N/A in the FY 2019 data compared to the FY 2020
175 See
H1B Registration Final Rule, 84 FR 888.
total number of registrations for the advanced degree exemption and the regular cap do not equal the total 274,237 submitted registrations because the remaining 5,043 submitted registrations were invalid e.g., as prohibited duplicate registrations.
177 U.S. Department of Homeland Security, U.S.
Citizenship and Immigration Services, Office of Policy and Strategy, Policy Research Division PRD, Form I129 H1B, FY 2021 Data, Claims 3
Aug. 31, 2020 & USCIS Analysis.
178 Calculation: 109,830 2-year average of Petitions Randomly Selected in FYs 20192020/
195,555 2- year average of Total Number of H1B

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data. Since DOLs Standard Occupational Classification SOC 181
structure was modified in 2018, some petitions were categorized as N/A in FY
2019. In 2019, DOL started to use a hybrid OES 182 occupational structure for classifying the petitions for FY 2020.
Another data limitation was that some of the FY 2020 data was incomplete with missing fields, and could not be classified into the specific wage levels;
therefore, the petitions were categorized as N/A. DHS expects each registrant that
is classified as N/A will 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 the abovementioned DOL guidance, all registrants will be able to determine the appropriate OES wage level for purposes of completing the registration, regardless of whether they specify an
Cap-Subject Petitions Filed in FYs 20192020 =
56%
179 USCIS created the tool to link USCIS H1B
data to the DOL data for FY 2019.
180 U.S. Department of Labor, Bureau of Labor Statistics, Occupational Employment Statistics, Frequently Asked Questions, https www.bls.gov/
oes/oes_ques.htm last visited Sept. 2, 2020 Can OES data be used to compare changes in employment or wages over time? Although the OES
survey methodology is designed to create detailed cross-sectional employment and wage estimates for the U.S., States, metropolitan and nonmetropolitan areas, across industry and by industry, it is less useful for comparisons of two or more points in time. Challenges in using OES data as a time series
include changes in the occupational, industrial, and geographical classification systems, changes in the way data are collected, changes in the survey reference period, and changes in mean wage estimation methodology, as well as permanent features of the methodology.
181 U.S. Department of Labor, Bureau of Labor Statistics, Standard Occupational Classification https www.bls.gov/soc/2018/home.htm last visited Oct. 27, 2020.
182 U.S. Department of Labor, Bureau of Labor Statistics, Occupational Employment Statistics, Implementing the 2018 SOC in the OES program May 2019 and May 2020 Hybrid Occupations, https www.bls.gov/oes/soc_2018.htm last visited Sept. 2, 2020.

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