Voglio sapere a riguardo di…

Federal Register / Vol. 86, No. 5 / Friday, January 8, 2021 / Rules and Regulations selected and counted toward the numerical allocations when USCIS
receives more petitions on the first day than are projected as needed to reach the H1B numerical allocations.
Consequently, Congress left to the discretion of USCIS how to handle simultaneous submissions and USCIS
has discretion to decide how best to order those petitions. 70
DHS acknowledges that INA section 214g3, 8 U.S.C. 1184g3, states that aliens subject to the H1B numerical limitation in INA section 214g1, 8
U.S.C. 1184g1, shall be issued H1B
visas or otherwise provided H1B
nonimmigrant status in the order in which petitions are filed for such visas or status. Contrary to the commenters assertions, this statutory provision, and, more specifically the term filed as used in INA section 214g3, 8 U.S.C.
1184g3, is ambiguous.71 As discussed in the preamble to the Registration Requirement for Petitioners Seeking to File H1B Petitions on Behalf of CapSubject Aliens Final Rule H1B
Registration Final Rule, an indiscriminate application of this statutory language would lead to absurd or arbitrary results; the longstanding approach has been to project the number of petitions needed to reach the numerical allocations.72
A literal application of this statutory language, as suggested by various commenters, would lead to an absurd or impossible result. The Department of State DOS does not issue H1B visas, and USCIS does not otherwise provide H1B status, based on the order in which petitions are filed. Such a literal application would necessarily mean that processing delays pertaining to a 70 See
243 F.Supp.3d at 1176.
243 F.Supp.3d at 116768 finding that USCISs rule establishing the random-selection process was a reasonable interpretation of the INA
that was entitled at least to Skidmore deference because what it means to file a petition is ambiguous and undefined under the INA and that Congress left to the discretion of USCIS how to handle simultaneous submissions. Specifically, the court said: Additionally, because 1184g3 was passed by Congress in 1990 when there was not widespread public use of electronic submissions, it is logical that Congress anticipated H1B petitions would be submitted either by U.S. mail or other carriers. Thus, it was reasonable to anticipate multiple petitions would arrive on the same day. It is therefore a reasonable interpretation of filed to include some further administrative step beyond mere receipt at a USCIS office to order multiple petitions that arrived in such a manner on the same day.. The availability of electronic submission of H1B registrations has not alleviated this issue as multiple registrations can still be submitted simultaneously.
72 See U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, Registration Requirement for Petitioners Seeking To File H1B Petitions on Behalf of Cap-Subject Aliens, 84 FR 888, 896 Jan. 31, 2019.

tkelley on DSKBCP9HB2PROD with RULES3

71 See
VerDate Sep<11>2014

23:18 Jan 07, 2021

Jkt 253001

petition earlier in the petition filing order would preclude issuance of a visa or provision of status to all other H1B
petitions later in the petition filing order. To avoid such an absurd result, the longstanding approach to implementing the numerical limitation has been to project the number of petitions needed to reach the numerical limitation. The issue, however, is how to select registrations or petitions, as applicable, when the number of submissions exceeds the number projected as needed to reach the numerical limitation or the advanced degree exemption, particularly when those submissions all occur within the same narrow window of time. DHS is not changing the approach to administering the numerical allocations as it relates to the use of projections.
DHS is, however, changing the selection process for selecting registrations or petitions, as applicable, to determine which petitions are properly filed and eligible for further processing consistent with INA section 214g3, 8 U.S.C.
1184g3.
DHS created the registration requirement based on its general statutory authority and its discretion to determine how best to handle simultaneous submissions in excess of the numerical allocations, to effectively and efficiently administer the H1B cap selection process. As provided in the H
1B Registration Final Rule, unless suspended by USCIS, registration is an antecedent procedural step that must be completed by prospective petitioners before they are eligible to file an H1B
cap-subject petition. As with the filing of petitions, and as explained above, a first-come, first-served basis for submitting electronic registrations is unreasonable and practically impossible.
While the random selection of registrations or petitions, as applicable, DHS established in the H1B
Registration Final Rule is reasonable, it is neither the optimal nor the exclusive method of selecting petitions or registrations toward the numerical allocations when more registrations or petitions, as applicable, are submitted than projected as needed to reach the numerical allocations.
In that vein, DHS concludes that prioritization and selection based on wage levels is a reasonable and rational interpretation of USCIS obligations under the INA to resolve the issues of processing H1B petitions 73 in years of excess demand and is within DHSs existing statutory authority.
73 See
PO 00000

Walker Macy, 243 F.Supp.3d at 1175.

Frm 00021

Fmt 4701

Sfmt 4700

1695

Comment: Multiple commenters cited a USCIS response to a comment in the H1B Registration Final Rule and wrote that USCIS previously supported the position that prioritization of selection based on salary or other substantive factors would require explicit Congressional authorization.
Commenters also cited a 1991
rulemaking in arguing that Immigration and Naturalization Service INS
previously acknowledged that the INA
does not authorize establishing criteria to prioritize petitions. These commenters also provided language from a 1990 INS rulemaking indicating that a statutory change would be necessary to exclude entry-level H1B
workers. A law firm argued that the Agency cannot reverse a position of this kind without providing a reasoned explanation.
Response: DHS disagrees with the commenters that prior statements by INS or USCIS preclude DHS from making the changes set forth in this final rule. DHS acknowledged in the proposed rule that the preamble to the H1B Registration Final Rule states that prioritization of registration selection on factors other than degree level, such as salary, would require statutory changes.
DHS also explained that the prior statement did not provide further analysis regarding that conclusion and that upon further review and consideration of the issue initially raised in comments to the Registration Requirement for Petitioners Seeking to File H1B Petitions on Behalf of CapSubject Aliens NPRM H1B
Registration Proposed Rule,74 DHS
concluded that the statute is silent as to how USCIS must select H1B petitions, or registrations, to be filed toward the numerical allocations in years of excess demand. DHS continues to believe that the changes made in this final rule are within its general authority, consistent with the existing statute, and despite prior statements to the contrary, does not require statutory change or explicit congressional authorization. DHS is relying on its general statutory authority to implement the statute and, consistent with that authority, is revising the regulations to implement a selection system that realistically, effectively, efficiently, and more faithfully administers the cap selection process.
See INA section 103a, 214a and c1, 8 U.S.C. 1103a, 1184a and c1.
74 U.S. Department of Homeland Security, U.S.
Citizenship and Immigration Services, Registration Requirement for Petitioners Seeking to File H1B
Petitions on Behalf of Cap-Subject Aliens, 83 FR
62406 proposed Dec. 3, 2018.

E:FRFM08JAR3.SGM

08JAR3