The Department of Homeland Security (DHS) today 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 expected 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.
Prioritization and selection based on wage levels better balances the interests of petitioners, H-1B workers, and U.S. workers. The changes proposed in this NPRM would 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.
This NPRM is necessary to further the administration’s goal of prioritizing H-1B cap-subject registrations for petitioners seeking to employ higher-skilled and higher paid workers, which is more aligned with the general congressional intent for the H-1B program.
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.
“With this proposed rule, the Trump administration is continuing to deliver on its promise to protect the American worker while strengthening the economy. The H-1B program is often exploited and abused by U.S. employers, and their U.S. clients, primarily seeking to hire foreign workers and pay lower wages,” said Acting DHS Deputy Secretary Ken Cuccinelli. “The current use of random selection to allocate H-1B visas makes it harder for businesses to plan their hiring, fails to leverage the H-1B program to truly compete for the world’s best and brightest, and hurts American workers by bringing in relatively lower-paid foreign labor at the expense of the American workforce.”