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

current registration system the majority of H1B cap-subject petitions have been filed for positions certified at the two lowest wage levels: I and II.83 This contradicts the dominant legislative purpose of the statute because the intent of the H1B program is to help U.S.
employers fill labor shortages in positions requiring highly skilled or highly educated workers.84 By changing the selection process, for these years of excess demand, from a random lottery selection to a wage-level-based selection process, DHS will implement the statute more faithfully to its dominant legislative purpose, increasing the chance of selection for registrations or petitions seeking to employ beneficiaries at wages that would equal or exceed the level IV or level III
prevailing wage for the applicable occupational classification.
Comments: A couple of commenters said the changes made by the rule should be decided by Congress.
Similarly, a few commenters stated generally that the proposal is not authorized by Congress or is in violation of Congressional intent. A few commenters said that 8 U.S.C.
1184g5C the exemption from the cap for beneficiaries who have earned a masters or higher degree from a U.S.
institution of higher education demonstrates that, where Congress intends to target petitions for highly skilled workers, it has done so Act in a manner which runs counter to the broad goals which Congress intended it to effectuate..
83 See U.S. Department of Homeland Security, U.S. Citizenship and Immigration. Services, Office of Policy and Strategy, Policy Research Division, H1B Wage Level by Top 25 Metro, Database Queried: July 10, 2020, Report Created: July 14, 2020, Systems: C3 via SASPME, DOL OFLC
Performance DATA H1B for 2018, 2019, Bureau of Labor Statistics: Occupational Employment Statistics for 2018, 2019 establishing that, for the top 25 metropolitan service areas for which H1B
beneficiaries were sought in FYs 2018 and 2019, all level I wages, 84% of level II wages, and 76% of No Wage Level wages fell below the Bureau of Labor Statistics median wages; Daniel Costa and Ron Hira, H1B Visas and Prevailing Wage Level, Economic Policy Institute May 4, 2020, https
www.epi.org/publication/h-1b-visas-and-prevailingwage-levels/ explaining that three-fifths of all H
1B jobs were certified at the two lowest prevailing wages in 2019 and, in fiscal year FY 2019, a total of 60% of H1B positions certified by Department of Labor DOL had been assigned wage levels I and II: 14% were at H1B Level 1 the 17th percentile and 46% per at H1B Level 2 34th percentile. Data concerning FY 2018 and 2019
petition filings pre-dates the publication of the DOL
IFR, 85 FR 63872.
84 See H.R. Rep. 101723I 1990, as reprinted in 1990 U.S.C.C.A.N. 6710, 6721 stating The U.S.
labor market is now faced with two problems that immigration policy can help to correct. The first is the need of American business for highly skilled, specially trained personnel to fill increasingly sophisticated jobs for which domestic personnel cannot be found and the need for other workers to meet specific labor shortages.

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explicitly. Others commented that, when this cap was legislated, it was clear that petitions still would exceed visa allocations and that the statute should be understood to have intentionally omitted any change to the priority of visa petitions; and one commenter added that the proposed rule would impact the ratio of advanced-degree holders to other H1B
recipients that Congress authorized when providing the 20,000 U.S.
advanced degree exemption. A company stated that the proposal is untethered to statutory language, providing examples of Congressional guidance and reasoning that nowhere in such guidance or the INA is there reference to salary or the OES prevailing wage level as a basis for selecting H1B
petitions. A professional association stated that effectively imposing an additional wage requirement would be inappropriate, especially for physicians.
Response: DHS disagrees with these comments. As stated in the NPRM and as explained above, this rule is consistent with Congressional intent and is 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. 112.85
Furthermore, DHS disagrees with the commenters assertions that the statute, or legislative history, indicates that Congress has spoken to the specific issue addressed by this final rule: how to select petitions toward the numerical allocations when the number of petitions filed is greater than the number of petitions projected as needed to reach the H1B numerical allocations. As explained in the NPRM
and in response to other comments, the statute is silent on this issue. 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. Congress expressly authorized DHS to determine eligibility for H1B classification upon petition by the importing employer, and to determine the form and information required to establish eligibility.86
Moreover, INA section 214g3 does not provide that petitions must be processed in the order received, submitted, or delivered. Instead, they 85 85

FR 69236, 69242.
INA section 214c1, 8 U.S.C. 1184c1.
See also Walker Macy, 243 F.Supp.3d at 1176
Congress left to the discretion of USCIS how to handle simultaneous submissions, and accordingly, USCIS has discretion to decide how best to order those petitions..
86 See
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must be processed in the order filed.
What it means to file a petition and how to handle simultaneously received petitions are ambiguous and were not dictated by Congress in the INA. 87 Rather, these implementation details are entrusted for DHS to administer. Nor should it be understood that Congress had spoken on this issue when the cap was legislated because it was not clear at that time that petitions would exceed visa allocations on the very first day that petitions could be filed, thus leading to a situation where prioritizing petitions solely in a temporal manner is impossible. So, while the statute provides annual limitations on the number of aliens who may be issued initial H1B visas or otherwise provided H1B nonimmigrant status, the statute does not specify how petitions must be 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. 88
Comments: Some commenters expressed that this rule is not consistent with the statutory framework Congress implemented for the admission of foreign workers into the United States, as Congress designated DOL to have the primary authority in protecting and enforcing the statute related to the U.S.
labor market and wages. Multiple commenters stated that Congress did not intend for wage levels to serve as a basis for preferring certain petitions, as evidenced by the statutes prevailing wage requirement. An individual commented that the preambles statement that Congress expressly authorized DHS to determine eligibility for H1B classification upon petition by the importing employer fails to recognize that this authorization is for USCIS determination regarding specific employers applications, rather than for categorically determining which wages or jobs qualify for H1B visas.
Response: DHS disagrees with the commenters assertion that this rule is inconsistent with the statute. As explained in the NPRM and in response to other comments, DHS believes that this rule is consistent with its statutory authority. DHS agrees that DOL has the primary authority to protect the wages and working conditions of U.S. workers consistent with the provisions of INA
section 212n, 8 U.S.C. 1182n, but 87 See 88 See
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243 F.Supp.3d at 1175.
243 F.Supp.3d at 1176.

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