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Federal Register / Vol. 86, No. 5 / Friday, January 8, 2021 / Rules and Regulations
due at the time the registration is submitted.
ii 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.
iii USCIS also may 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. USCIS will not deny or revoke approval of such an amended or new petition solely on the basis of a different proffered wage if that wage does not correspond to a lower OES wage level than the wage level on which the registration selection was based.

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1 If the final receipt date is any of the first five business days on which petitions subject to the H1B regular cap may be received, USCIS will select from among all the petitions properly submitted during the first five business days the number of petitions deemed necessary to meet the H1B regular cap.
If USCIS has received more petitions than necessary to meet the numerical limitation for the H1B regular cap, USCIS will rank and select the petitions received on the basis of the highest Occupational Employment Statistics OES wage level that the proffered wage equals or exceeds for the relevant Standard Occupational Classification SOC code in the area of intended employment, beginning with OES wage level IV and proceeding in descending order with OES wage levels III, II, and I. Where there is no current OES
prevailing wage information for the proffered position, USCIS will rank and select petitions based on the appropriate wage level that corresponds to the requirements of the proffered position.
If the wage falls below an OES wage level I, USCIS will rank the petition in the same category as OES wage level I.
USCIS will rank the petition in the same manner even if, instead of obtaining an OES prevailing wage, a petitioner elects to obtain a prevailing wage using another legitimate source other than
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OES or an independent authoritative source. If USCIS receives and ranks more petitions at a particular wage level than the projected number needed to meet the numerical limitation, USCIS
will randomly select from among all eligible petitions within that particular wage level a sufficient number of petitions needed to reach the numerical limitation.
2 Advanced degree exemption selection in event of suspended registration process. After USCIS has received a sufficient number of petitions to meet the H1B regular cap and, as applicable, completed the selection process of petitions for the H1B regular cap, USCIS will determine whether there is a sufficient number of remaining petitions to meet the H1B
advanced degree exemption numerical limitation. When calculating the number of petitions needed to meet the H1B advanced degree exemption numerical limitation USCIS will take into account historical data related to approvals, denials, revocations, and other relevant factors. USCIS will monitor the number of petitions received and will announce on its website the date that it receives the number of petitions projected as needed to meet the H1B advanced degree exemption numerical limitation the final receipt date. The date the announcement is posted will not control the final receipt date. If the final receipt date is any of the first five business days on which petitions subject to the H1B
advanced degree exemption may be received in other words, if the numerical limitation is reached on any one of the first five business days that filings can be made, USCIS will select from among all the petitions properly submitted during the first five business days the number of petitions deemed necessary to meet the H1B advanced degree exemption numerical limitation.
If USCIS has received more petitions than necessary to meet the numerical limitation for the H1B advanced degree exemption, USCIS will rank and select the petitions received on the basis of the highest Occupational Employment Statistics OES wage level that the proffered wage equals or exceeds for the relevant Standard Occupational Classification SOC code in the area of intended employment, beginning with OES wage level IV and proceeding with OES wage levels III, II, and I. Where there is no current OES prevailing wage information for the proffered position, USCIS will rank and select petitions based on the appropriate wage level that corresponds to the requirements of the proffered position. If the proffered wage
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is below an OES wage level I, USCIS
will rank the petition in the same category as OES wage level I. USCIS
will rank the petition in the same manner even if, instead of obtaining an OES prevailing wage, a petitioner elects to obtain a prevailing wage using another legitimate source other than OES or an independent authoritative source. If USCIS receives and ranks more petitions at a particular wage level than necessary to meet the numerical limitation for the H1B advanced degree exemption, USCIS will randomly select from among all eligible petitions within that particular wage level a sufficient number of petitions needed to reach the numerical limitation.

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ii Notice of denial. The petitioner shall be notified of the reasons for the denial and of the right to appeal the denial of the petition under 8 CFR part 103. The petition may be denied if it is determined that the statements on the registration or petition were inaccurate.
The petition will be denied if it is determined that the statements on the registration or petition were fraudulent or misrepresented a material fact. A
petition also may be denied if it is not based on a valid registration submitted by the petitioner or its designated representative, or a successor in interest, for the beneficiary named in the petition. A valid registration must represent a legitimate job offer. 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. USCIS will not deny such an amended or new petition solely on the basis of a different proffered wage if that wage does not correspond to a lower OES wage level than the wage level on which the registration or petition selection, as applicable, was based. There is no appeal from a decision to deny an extension of stay to the alien.
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2 The statement of facts contained in the petition; the registration, if applicable; or on the temporary labor certification or labor condition application; was not true and correct,
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