Proposal to Replace H-1B Cap Random Selection Process with Wage-Based Selection Process

The Department of Homeland Security (DHS) yesterday announced the transmission to the Federal Register of a notice of proposed rulemaking (NPRM) to amend regulations governing the process by which U.S. Citizenship and Immigration Services selects H-1B registrations  for filing of H-1B cap-subject petitions (or petitions, if the registration process is suspended). 

If finalized as proposed, USCIS would first select registrations (or petitions, if the registration process is suspended) generally based on the highest Occupational Employment Statistics prevailing wage level that the offered wage equals or exceeds for the relevant Standard Occupational Classification code and area(s) of intended employment. Replacing the random selection process in this manner is claimed by the administration to help counter the downward pressure on the wages of U.S. workers that is created by an annual influx of relatively lower-paid, new cap-subject H-1B workers. Whether there is validity in this claim by the administration is yet to be verified.

 Prioritization and selection based on wage levels is claimed by DHS to better balances the interests of petitioners, H-1B workers, and U.S. workers. The changes proposed in this NPRM are claimed to maintain the effective and efficient administration of the H-1B cap selection process while providing some prospective petitioners the ability to potentially improve their chance of selection by agreeing to pay H-1B beneficiaries higher wages that equal or exceed higher prevailing wage levels. 

 DHS will open a public comment period once the NPRM is published in the Federal Register. Interested parties will have 30 days to submit comments relevant to the proposed rule and 60 days to submit comments relevant to the proposed information collection. The Department will review all properly submitted comments, consider them carefully, and draft responses before issuing a final rule.