Voglio sapere a riguardo di…

Federal Register / Vol. 86, No. 5 / Friday, January 8, 2021 / Rules and Regulations incomplete OES data can be established, notwithstanding these apparent data gaps and deficiencies. The commenter concluded that, despite the inadequacy or unavailability of OES data, the proposed rule ignores the requirement that wage data be sourced from the best information available, placing unwarranted and artificial reliance on OES data despite its faults or lack of availability.
Response: DHS recognizes that prevailing wage level data remains unavailable for some SOC codes in some areas of intended employment.
However, DHS still believes that OES
provides the most comprehensive and objective publicly available source for obtaining prevailing wage information and, thus, is still the best available option to serve the overarching goal of improving policies such that H1B
classification is more likely to be awarded to petitioners seeking to employ higher-skilled and higher-paid beneficiaries.115

tkelley on DSKBCP9HB2PROD with RULES3

iii. Lowest OES Wage Level That the Proffered Wage Would Equal or Exceed When Beneficiary Would Work in Multiple Locations or Positions Comment: A commenter said employers may relocate an employee to temporarily work remotely in a location where average salary is low to keep wages low while increasing the H1B
wage level and the chance of being selected. The commenter suggested that the area code used for the selection of H1B registrations only should be the registered official address of the company, instead of anywhere where the employee will work, concluding that employers should be fined for misrepresenting work locations to take advantage of lower wages.
Response: DHS appreciates this commenters concern, but believes the commenter misunderstood how the new H1B cap selection process will work 115 See Kirk Doran et al., The Effects of HighSkilled Immigration Policy on Firms: Evidence from Visa Lotteries, University of Notre Dame Feb.
2016, https gspp.berkeley.edu/assets/uploads/
research/pdf/h1b.pdf noting that additional H
1Bs lead to lower average employee earnings and higher firm profits and the authors results are more supportive of the narrative about the effects of H1Bs on firms in which H1Bs crowd out alternative workers, are paid less than the alternative workers whom they crowd out, and thus increase the firms profits despite no measurable effect on innovation; John Bound et al., Understanding the Economic Impact of the H1B
Program on the U.S., Working Paper 23153, National Bureau of Economic Research Feb. 2017, http www.nber.org/papers/w23153 In the absence of immigration, wages for US computer scientists would have been 2.6% to 5.1% higher and employment in computer science for US
workers would have been 6.1% to 10.8% higher in 2001..

VerDate Sep<11>2014

23:18 Jan 07, 2021

Jkt 253001

and the limitations contained in the proposed rule to limit the potential for abuse or gaming of the selection process. If the H1B beneficiary will work in multiple locations or multiple positions, the registrant or petitioner must specify on the registration or petition, as applicable, the lowest corresponding OES wage level that the proffered wage will equal or exceed for the relevant SOC code in the area of intended employment, and USCIS will rank and select based on the lowest corresponding OES wage level.
DHS provides the following example for illustrative purposes only. A
prospective employer intends to employ an H1B beneficiary as a level I Civil Engineer position SOC code 172051
at two locations: San Francisco, California and Montgomery, Alabama.
The Alabama location was specifically chosen because of that localitys generally lower prevailing wages. The required level I prevailing wage for each area of intended employment is $77,147
per year 116 and $62,858 per year,117
respectively. In this scenario, to meet the level I prevailing wage for the San Francisco area of intended employment, the minimum annual wage the prospective petitioner must offer to the beneficiary is $77,147. While an annual salary of $77,147 would exceed the level II prevailing wage for the Montgomery, Alabama, area of intended employment,118 the prospective petitioner still must select Level I for purposes of the registration because that is the lowest corresponding OES wage level that the proffered wage will equal or exceed for the relevant SOC code in all areas of intended employment. This rule also includes provisions authorizing USCIS to deny an H1B
petition if USCIS determines that the statements on the registration or petition were inaccurate, fraudulent or 116 U.S. Department of Labor, Foreign Labor Certification Data Center, Online Wage Library, https www.flcdatacenter.com/
OesQuickResults.aspx?code=172051&area=41860&year=21&source=1 last visited Dec. 21, 2020 providing prevailing wage level values for SOC code 172051 in San FranciscoOakland-Hayward, CA, in the All Industries database for 7/20206/2021.
117 U.S. Department of Labor, Foreign Labor Certification Data Center, Online Wage Library, https www.flcdatacenter.com/
OesQuickResults.aspx?code=172051&area=33860&year=21&source=1 last visited Dec. 21, 2020 providing prevailing wage level values for SOC code 172051 in Montgomery, AL, in the All Industries database for 7/20206/2021.
118 U.S. Department of Labor, Foreign Labor Certification Data Center, Online Wage Library, https www.flcdatacenter.com/
OesQuickResults.aspx?code=172051&area=33860&year=21&source=1 last visited Dec. 21, 2020 showing that a level II wage =
$74,901.

PO 00000

Frm 00031

Fmt 4701

Sfmt 4700

1705

misrepresented a material fact.119 USCIS
also 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 lower wage level than that indicated on the original petition.120
Comment: A professional association expressed concern with the proposed rules language stating, if the beneficiary will work in multiple locations, or in multiple positions if the registrant is an agent, USCIS will rank and select the registration for the lowest corresponding OES wage level that the proffered wage will equal or exceed. 121
The commenter stated that, basing the chance for selection on the lower wage figure is an arbitrary protocol without explanation. Likewise, an individual commenter said the provision is unfairly discriminatory and lacks adequate justification, adding that it is unconscionable to use an inverted system for ranking.
Response: DHS chose to use the lowest corresponding OES wage level that the proffered wage will equal or exceed in the case of multiple locations or multiple positions to prevent gaming of the registration process. If DHS were to invert the process and rank based on the highest corresponding OES wage level that the proffered wage were to equal or exceed, then petitioners could place the beneficiary in a lower-paying position for most of the time and a higher-paying position for only a small percent of the time, but use that higherpaying position to rank higher in the selection process and increase their chances of being selected in the registration process. Similarly, in the case of multiple locations, petitioners could place the beneficiary in a higherpaying locality for only a small percent of time, but use that higher-paying locality to rank higher in the selection process and increase their chances of being selected in the registration process.
iv. Other Comments on OES Wage Level Comment: Several commenters said that the proposed rules changes to prevailing wage levels are in direct opposition to established guidance set forth in the DOL Employment and 119 See
new 8 CFR 214.2h10ii.
new 8 CFR 214.2h10ii.
121 85 FR 69236, 69263.
120 See
E:FRFM08JAR3.SGM

08JAR3