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Federal Register / Vol. 86, No. 5 / Friday, January 8, 2021 / Rules and Regulations
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TABLE 1SUMMARY OF PROVISIONS AND ECONOMIC IMPACTS OF THE FINAL RULE
Provision
Description of changes to provision
Estimated costs of provisions
Estimated benefits of provisions
Currently, USCIS randomly selects H
1B registrations or cap-subject petitions, as applicable. USCIS will change the selection process to prioritize selection of registrations or cap-subject petitions, as applicable, based on corresponding OES wage level.
DHS regulations currently address H
1B cap allocation in various contexts:
1. Fewer registrations than needed to meet the H1B regular cap.
2. Sufficient registrations to meet the H1B regular cap during the initial registration period.
3. Fewer registrations than needed to meet the H1B advanced degree exemption numerical limitation.
4. Sufficient registrations to meet the H1B advanced degree exemption numerical limitation during the initial registration period.
5. Increase to the number of registrations projected to meet the H1B regular cap or advanced degree exemption allocations in a FY.
6. H1B cap-subject petition filing following registration1 Filing procedures.
7. Petition-based cap-subject selections in event of suspended registration process.
8. Denial of petition.
9. Revocation of approval of petition.

USCIS will rank and select H1B registrations or H1B petitions if the registration requirement is suspended generally based on the highest OES wage level that the proffered wage equals or exceeds for the relevant SOC code and areas of intended employment. This final rule will add instructions and a question to the registration form to select the appropriate wage level. This final rule also will add instructions and questions to the H1B petition seeking the same wage level information and other information concerning the proffered position to assess the prevailing wage level. This final rule will not affect the order of selection as between the regular cap and the advanced degree exemption.
If USCIS receives and ranks more registrations at a particular wage level than the projected number needed to meet the numerical limitation, USCIS
will randomly select from all registrations within that particular wage level a sufficient number of registrations needed to reach the numerical limitation.
USCIS is authorized to deny a subsequent new or amended petition filed by the petitioner, or a related entity, on behalf of the same beneficiary for a lower wage level if USCIS determines that the new or amended petition was filed to reduce the wage level listed on the original petition to unfairly increase the odds of selection during the registration selection process.
In any year in which USCIS suspends the H1B electronic registration process for cap-subject petitions, USCIS
will, instead, allow for the submission of H1B cap-subject petitions. After USCIS receives a sufficient number of petitions to meet the H1B regular cap and were to complete the selection process of petitions for the H1B
regular cap following the same method of ranking and selection based on corresponding OES wage level, USCIS will determine whether there is a sufficient number of remaining petitions to meet the H1B advanced degree exemption numerical limitation.

Quantitative:
Petitioners $3,457,401 costs annually for petitioners completing and filing Form I129 petitions with an additional time burden of 15 minutes.
$11,795,997 costs annually for prospective petitioners submitting electronic registrations with an additional time burden of 20
minutes.
DHS/USCIS
None.
Qualitative:
Petitioners Petitioners may incur costs to seek out and train other workers, or to induce workers with similar qualifications to consider changing industry or occupation.
Petitioners that would have hired relatively low-paid H1B workers, but were unable to do so because of non-selection and ineligibility to file petitions, may incur reduced labor productivity and revenue.
Petitioners may incur costs from offering beneficiaries higher wages for the same work to achieve greater chances of selection.
DHS/USCIS
None.

Familiarization Cost

Familiarization costs comprise the opportunity cost of the time spent reading and understanding the details of a rule to fully comply with the new regulations.

Quantitative:
Petitioners One-time cost of $6,285,527 in FY 2022.
DHS/USCIS
None.
Qualitative:
Petitioners None.
DHS/USCIS
None.

Quantitative:
Petitioners None.
DHS/USCIS
None.
Qualitative:
U.S. Workers A possible increase in employment opportunities for similarly skilled unemployed or underemployed U.S. workers seeking employment in positions otherwise offered to H1B cap-subject beneficiaries at wage levels corresponding to lower wage positions.
H1B Workers A possible increase in productivity, measured in increased H
1B wages, resulting from the reallocation of a fixed number of visas from positions classified as lower-level work to employers able to pay the highest wages for the most highly skilled workers.
A possible increase in wages for positions offered to H1B capsubject beneficiaries for the same work to improve the prospective petitioners chance of selection.
Petitioners Level I and level II beneficiaries may see increased wages. Companies who have historically paid level I wages may be incentivized to offer their H1B
employees higher wages, so that they could have a greater chance of selection at a level II
or higher.
Employers who offer H1B
workers wages that corresponds with level III or level IV OES
wages may have higher chances of selection.
DHS/USCIS
Submitting additional wage level information on both an electronic registration and on Form I129
will allow USCIS to maintain the integrity of the H1B cap selection and adjudication processes.
Registrations or petitions, as applicable, will be more likely to be selected under the numerical allocations for the highest paid, and presumably highest skilled or highest-valued, beneficiaries.
Quantitative:
Petitioners None.
DHS/USCIS
None.
Qualitative:
Petitioners None.
DHS/USCIS
None.

In addition to the impacts summarized here, Table 2 presents the
accounting statement as required by OMB Circular A4.149

TABLE 2OMB A4 ACCOUNTING STATEMENT
$, 2019 for FY 2022FY 2032

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Category
Primary estimate
Benefits:
Annualized Monetized Benefits over 10 years discount rate in parenthesis.

N/A
N/A

149 White House, Office of Management and Budget, Circular A4 Sept. 17, 2003, available at
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files/omb/circulars/A4/a-4.pdf last visited Aug. 11, 2020.

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