The Department of Homeland Security (DHS) published a proposed rule on November 2, 2020, that would prioritize the selection of H-1B registrations (or petitions, if the registration process is suspended) based on corresponding wage levels. U.S. Citizenship and Immigration Services generally would first select registrations based on the highest Occupational Employment Statistics prevailing wage level that the proffered wage equals or exceeds for the relevant Standard Occupational Classification code and area(s) of intended employment.

Modifying the H-1B selection process by replacing the random selection process with a wage-level-based selection process “is a better way to allocate H-1Bs when demand exceeds supply,” DHS said. The agency believes that such a new selection process “would incentivize employers to offer higher wages or petition for positions requiring higher skills and higher-skilled workers instead of using the program to fill relatively lower-paid vacancies.”

The proposed rule would be implemented for both the H-1B regular cap and the H-1B advanced degree exemption, but would not change the order of selection between the two as established by the H-1B registration requirement final rule. The wage level ranking would occur first for the regular cap selection and then for the advanced degree exemption.

Litigation is expected. Comments are due within 30 days of November 2, 2020 on the proposed rule, and within 60 days on the proposed information collection.

Miller Mayer immigration attorney Steve Yale-Loehr was quoted about the proposed H-1B rule. See the last article in this newsletter.

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