Washington, D.C. Today, the Department of Homeland Security (DHS) announced the transmission to the Federal Register of a notice of proposed rulemaking (NPRM) that would prioritize the selection of H-1B registrations (or petitions, if the registration process is suspended) based on corresponding wage levels.
If finalized as proposed, this new selection process would incentivize employers to offer higher wages or petition for positions requiring higher skills and higher-skilled workers.
This effort would only affect H-1B registrations submitted by prospective petitioners seeking to file H-1B cap-subject petitions. It would be implemented for both the H-1B regular cap and the H-1B advanced degree (U.S. master’s or higher cap) exemption, but would not change the order of selection between the two as established by the H-1B registration requirement final rule.
DHS proposes to amend the way registrations for H-1B cap-subject petitions (or petitions, if the registration process is suspended), including those eligible for the advanced degree exemption, are selected.
Changes Proposed:
DHS proposes that, if more registrations were received during the annual initial registration period (or petition filing period, if applicable) than necessary to reach the applicable numerical allocation, USCIS would rank and select the registrations (or petitions, if the registration process were suspended) received generally on the basis of the highest OES wage level that the proffered wage were to equal or exceed 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 were to fall below an OES wage level I, because the proffered wage were based on a prevailing wage from another legitimate source (other than OES) or an independent authoritative source, USCIS would rank the registration in the same category as OES wage level I.
During an annual initial registration period of at least 14 days, if fewer registrations than necessary to reach the regular cap were submitted, USCIS would select all registrations properly submitted during the annual initial registration period, regardless of wage level, and would continue to accept registrations until USCIS were to determine a final registration date based on the submission of a sufficient number of registrations to reach the regular cap. If more registrations were submitted on the final registration date than necessary to reach the regular cap, USCIS would rank and select registrations from among those submitted on the final registration date generally based on the highest corresponding OES wage level that the proffered wage equals or exceeds for the relevant SOC code and in the area of intended employment.
Thereafter, USCIS would complete 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, USCIS would rank and select registrations for beneficiaries who are eligible for the advanced-degree exemption 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, beginning with OES wage level IV and proceeding in descending order with OES wage levels III, II, and I
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.
Both of these lawsuits seek reversal of DOL’s policy which changed the long-standing methodology of calculation of the prevailing wage levels.
Note: This is a blog post by Adhikari Law PLLC and should NOT be construed as a legal advice. Changes in immigration policies and procedures are complex and may require a consultation with an experienced immigration lawyer.
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