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Federal Register / Vol. 86, No. 5 / Friday, January 8, 2021 / Rules and Regulations
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Training Administration Prevailing Wage Determination Policy Guidance.122
Response: This rule does not conflict with or change established DOL
guidance. DHS clearly stated in the NPRM that this ranking and selection process will not alter the prevailing wage levels associated with a given position for DOL purposes, which are informed by a comparison of the requirements for the proffered position to the normal requirements for the occupational classification.123
Comment: A professional association wrote that the OES wage data has various shortcomings, and there are advantages to using a variety of wage data. Prevailing wage data can originate from multiple sources, including wage surveys published by private organizations and employer-conducted surveys. The association said that BLS
OES survey data used to calculate prevailing wages is not designed for foreign labor certification, and OES
survey data captures no information about differences based on skills, training, experience or responsibility levels of the workers, all of which are factors the INA requires DHS to consider. The association said that the OES survey is the best available source of wage data for the Departments purposes, but it is not perfectly suited to the H1B, H1B1, and E3
classifications, nor to the Permanent Labor Certification Program PERM.
The professional association also commented that the proposed rule does not describe the cases when OES
prevailing wage data would be unavailable or how USCIS officials would be trained to interpret DOL
guidance, and petitioners who cannot use Online Wage Library data would have no way to know whether USCIS
officials misinterpreted the DOL
guidance and mistakenly disagreed with an employers wage level selection.
Response: When determining how to rank and select registrations or petitions, as applicable by the highest OES prevailing wage level that the proffered wage equals or exceeds, DHS
decided to use OES prevailing wage levels because OES is the most comprehensive and objective source for comparing wages. The OES program produces employment and wage estimates annually for nearly 800
122 U.S. Department of Labor, Employment and Training Administration, Prevailing Wage Determination Policy Guidance, Nonagricultural Immigration Programs Revised Nov. 2009, https
www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/
NPWHC_Guidance_Revised_11_2009.pdf.
123 85 FR 69236, 69237.

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occupations.124 Additionally, most petitioners are familiar with the OES
wage levels since they are used by DOL
and have been used in the foreign labor certification process since 1998.125
During the adjudication process, if USCIS disagrees with the wage level selected by the petitioner, USCIS will comply with 8 CFR 103.2b8 and may provide the petitioner an opportunity to explain the wage level, as applicable. If USCIS determines that the petitioner failed to meet its burden of proof in establishing that it selected the appropriate SOC code for the position, or if USCIS determines that the petition was not based on a valid registration e.g., if there is a discrepancy in wage levels between the registration and the petition, USCIS may deny the petition.126 If USCIS determines that the statement of facts contained on the registration form is inaccurate, fraudulent, misrepresents any material fact, or is not true and correct, USCIS
may reject or deny the petition or, if approved, may revoke the approval of a petition that was filed based on that registration.127 If USCIS determines that the statement of facts contained in the petition or on the LCA was not true and correct, inaccurate, fraudulent, or misrepresented a material fact, USCIS
may revoke the approval of that petition.128
b. Attestation to the Veracity of the Contents of the Registration and Petition Including Comments on Rejections, Denials, and Revocations Comments: One commenter noted the need to ensure that ranking and selection as described would not enable attempts to increase the chance of selection by representing one wage level at the registration stage and a lower wage level at the H1B petition filing stage.
Response: DHS appreciates and shares the commenters concern. New 8 CFR
214.2h8iiiD1iii, h10ii, and h11iiiA2 address the concern that registrants could misrepresent wage levels at the registration stage to increase chances of selection.
Specifically, this final rule empowers USCIS to deny a petition if USCIS
determines that the statements on the 124 U.S. Department of Labor, U.S. Bureau of Labor Statistics, Occupational Employment Statistics, https www.bls.gov/oes/home.htm last visited on Dec. 11, 2020.
125 U.S. Department of Labor, Employment and Training Administration, Prevailing Wages PERM, H2B, H1B, H1B1, and E3, https www.dol.gov/
agencies/eta/foreign-labor/wages/prevailing-wage last visited Dec. 11, 2020.
126 See new 8 CFR 214.2h8iiiD1i.
127 See new 8 CFR 214.2h8iiiD1ii.
128 See new 8 CFR 214.2h11iiiA2.

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registration or petition were inaccurate, fraudulent, or misrepresented a material fact. The rule also authorizes USCIS to deny or revoke approval of 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 decrease the proffered wage to an amount that would be equivalent to a lower wage level, after listing a higher wage level on the registration to increase the odds of selection. The ability to deny or revoke approval of an H1B petition in such a context will defend against registrants and petitioners attempting to abuse the H1B cap selection process by misrepresenting wage levels.
Comment: One commenter asked what factors DHS will use to determine if a petitioner attempted to circumvent the proposed rule by filing a subsequent new petition with a lower wage under a related entity, and whether DHS will consider that related entities may have different compensation ranges for similar positions in making this determination.
Response: DHS thanks this commenter for the question. Under new 8 CFR 214.2h10ii, USCIS 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. Whether 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 is an issue of fact that USCIS will determine based on the totality of the record. As such, DHS cannot provide an exclusive list of factors that USCIS will consider in such adjudications. In general, however, the petitioner or a related entity bears the burden of proof to demonstrate that: the new or amended petition is not part of the petitioners attempt to unfairly increase the odds of selection during the registration or petition selection process; the initial H1B petition and the underlying registration, when applicable, was based on a legitimate
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