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Federal Register / Vol. 86, No. 5 / Friday, January 8, 2021 / Rules and Regulations
fewer U.S. born entry-level employees were hired. Yet another individual commenter wrote that the agency should make it easier to report visa fraud, and that stricter, more comprehensive punishments should be in place for visa fraud. A few anonymous commenters said that the H1B visa is a scam. A trade association wrote in opposition to two other rules related to the H1B visa published by DOL and DHS, the latter of which revised the definition of specialty occupations eligible for H
1B visas, limited visas to one year for third party worksites, and expanded DHS worksite oversight.147 Another trade association also wrote in opposition to the DOL and DHS IFRs, objecting specifically to the DHS IFRs revisions to the definitions of specialty occupations and U.S. employer, the requirements for corroborating evidence for specialty occupations, and the amended validity period for third-party placement at worksites.148 The commenter provided background information and a summary of the DHS
IFR. One commenter said the lottery system is unfair, and USCIS should instead focus on limiting fraud and abuse of the lottery system. Yet another trade association opposed the proposed rule and suggested that the Agency implement reforms as discussed in the National Association of Manufacturers A Way Forward plan, including statutory changes to the H1B program, border security measures, asylum, and other immigration programs. A union argued that due to the timing and rushed nature of the DOL IFR and this proposed rule, any changes are vulnerable to procedural challenge and are likely politically motivated. The commenter went on to provide extensive feedback on the DOL and DHS
IFRs and the H1B program at large, calling for immigration reform and urging the Departments of Labor and Homeland Security to make structural changes to the H1B program that protect workers rights. A research organization wrote about the H1B

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147 DOL IFR, 85 FR 63872; H1B Strengthening IFR, 85 FR 63918.
148 H1B Strengthening IFR, 85 FR 63918.

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program in general, saying that allowing outsourcing companies to hire H1B
workers lets employers use the immigration system to degrade labor standards for skilled workers and exploit H1B employees. Additionally, the commenter argued that outsourcing companies are using the H1B program to underpay H1B workers, replace U.S.
workers, and send tech jobs abroad. A
submission on behalf of U.S. citizen medical graduates urged expanding the H1B and J1 visa ban to include the healthcare sector, prioritizing U.S.
citizens for placement in residency programs, or that the Accreditation Council for Graduate Medical Education ACGME consider opening up more residency spots and new residency programs. A professional association recommended that USCIS modify its regulation at 8 CFR 214.2h8iiiA4
Limitation on requested start date permitting a requested start date on or after the first day for the applicable fiscal year.
Response: DHS appreciates these comments; however, DHS did not propose to address these issues in the proposed rule, so these comments fall outside of the scope of this rulemaking.
DHS is finalizing this rule as proposed.
V. Statutory and Regulatory Requirements A. Executive Orders 12866 Regulatory Planning and Review, Executive Order 13563 Improving Regulation and Regulatory Review, and Executive Order 13771 Reducing Regulation and Controlling Regulatory Costs Executive Orders E.O. 12866 and 13563 direct agencies to assess the costs, benefits, and transfers of available alternatives, and if regulation is necessary, to select regulatory approaches that maximize net benefits including potential economic, environmental, public health and safety effects, distributive impacts, and equity. Executive Order 13563
emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.
Pursuant to Executive Order 12866
Regulatory Planning and Review, the
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Office of Information and Regulatory Affairs OIRA, of the Office of Management and Budget, has determined that this final rule is an economically significant regulatory action. However, OIRA has waived review of this regulation under section 6a3A of Executive Order 12866.
1. Summary of Economic Effects DHS is amending its regulations governing the selection of registrants eligible to file H1B cap-subject petitions, which includes petitions subject to the regular cap and those asserting eligibility for the advanced degree exemption, to allow for ranking and selection based on OES wage levels corresponding to their SOC codes.
USCIS will rank and select the registrations properly submitted or petitions in any year in which the registration process is suspended generally on the basis of the highest OES wage level that the proffered wage equals or exceeds for the relevant SOC
code and in the area of intended employment. USCIS will begin with OES wage level IV and proceed in descending order with OES wage levels III, II, and I. DHS is amending the relevant sections of DHS regulations to reflect these changes.
The described change in selection is expected to result in a different allocation of H1B visas or grants of initial H1B status favoring petitioners that proffer relatively higher wages. In the analysis that follows, DHS presents its best estimate for how H1B
petitioners will be affected by and will respond to the increased probability of selection of registrations of petitions proffering the highest wages for a given occupation and area of employment.
DHS estimates the net costs that will result from this final rule compared to the baseline of the H1B visa program.
For the 10-year implementation period of the rule, DHS estimates the annualized costs to the public would be $15,968,792 annualized at 3-percent, $16,089,770 annualized at 7-percent.
Table 1 provides a more detailed summary of the final rule provisions and their impacts.

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