Greenspoon Marder Immigration Alert: New Developments January 8, 2021
Jan 8, 2021
Breaking News: DHS Announced Its Final Rule on Wage-Based H-1B Cap Selection Process
Yesterday, U.S. Citizenship and Immigration Services (USCIS) announced its
final rule on modifying the H-1B cap selection process that was proposed in November 2020. USCIS has declined to modify the regulatory text in the proposed rule after the comment period and published its final rule as proposed in the Notice of Proposed Rulemaking (NPRM). The final rule will shift the H-1B cap selection process from the current random lottery selection to wage based selection procedure. Under the final rule, USCIS will make the H-1B cap selection based on the highest Occupational Employment Standard Occupational Classifications (SOC) code and area of intended employment. According to the USCIS, the final rule aims to “prioritize wages to protect the economic interests of U.S. workers and better ensure the most highly skilled foreign workers benefit from the temporary employment program.”
Below is the summary of the rule:
If more registrations are received during the annual initial registration period than necessary to reach the applicable numerical allocation, USCIS will rank and select the registrations received on the basis of the highest OES wage level that the proffered wage equaled or exceeded for the relevant SOC code and 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.
If the proffered wage falls below an OES wage level I, because the proffered wage is based on a prevailing wage from another legitimate source (other than OES) such a private wage survey or an independent authoritative source, USCIS will rank the registration as OES Level I.
After completion of the selection process for the regular 65,000 H-1B cap, USCIS will utilize the same ranking and selection process to meet the advanced-degree exemption if a sufficient number of registrations were submitted during the annual initial registration period to reach the advanced-degree exemption.
If USCIS receives and ranks more registrations at a particular wage level than the projected number needed to meet the applicable numerical allocation, USCIS will randomly select from all registrations within that particular wage level to reach the applicable numerical limitation.
If the H-1B beneficiary will work in multiple locations, USCIS will rank and select the registration based on the lowest corresponding OES wage level that the proffered wage will equal or exceed.
Where there is no current OES prevailing wage information for the proffered position, USCIS will rank and select the registration based on the OES wage level that corresponds to the requirements of the proffered position.
The electronic registration form (and the H-1B petition) will be amended to require provision of the highest OES wage level that the proffered wage equals or exceeds for the relevant SOC code in the area of intended employment.
The proposed rule requires that a valid registration must represent a legitimate job offer.
USCIS may deny the petition if it is determined that the statements on the registration or petition were inaccurate, fraudulent, or misrepresented a material fact including if the offered wage is not consistent with the initial registration.
USCIS 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 petitioner’s 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 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 was based.
The final rule will be effective 60 days after its publication in the Federal Registration. USCIS aims to have the new selection in place by the Fiscal Year 2022 cap filing season. However, final rule is expected to be challenged by litigation or maybe delayed by the incoming Biden administration. Greenspoon Marder is closely monitoring the status and will provide updates as they become available.
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