Summary of Rule 1615-AC61 – Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject H-1B Petitions. This rule changes the H-1B selection process for the 85K annually allotted visa from a random selection to one based on wages.
The rule is final but doesn’t go into effect for 60 days. That means it will not impact the next H-1B lottery since the entry period will start before that date.
The review of the comments is all familiar. It’s essentially a rehashing of responses the government provided in the various lawsuits on H-1B rules previously published. One interesting example regards DHS Secretary Chad Wolf’s illegal appointment. The Vacancies Act violation will likely mean a court will toss this reg.
A lot of discussion is made regarding the impact on physician immigration. DHS’ responses show a complete lack of understanding of the issue and a failure to research the issue. For example, they say some US medical grads aren’t getting residency slots.
Yes, some med school grads have not been offered residency slots and aren’t matching. But more than ¼ of MDs are international and jeopardizing the overall physician supply for a couple hundred doctors.
Congress can take care of this group by expanding residency slots or taking responsibility for paying back their student loans. This rule is not going to solve this problem for them, however.
Another outrageous statement from DHS in the rule. US university grads aren’t going to be hurt because they have 3 years of STEM OPT to get the experience needed to get their wages up. But DHS has been trying to kill STEM OPT. And non-STEM grads only get 1 year of OPT.
Also, universities complained that recruiting intl students – worth billions of $ & vital to keeping departments at many schools open – will be harder if it’s harder for them to find jobs upon graduation. DHS said schools are strong enough to attract students anyway.
DHS pushed back on comments that Congress has to make these changes. However, Congress has been considering legislation for several years that would re-prioritize how H-1Bs are allocated (e.g. I-Squared). They haven’t voted for any.
DHS rejected all comments seeking changes from the proposed rule. “DHS does not agree” is how every negative comment is answered.
DHS bypassed normal requirement that 60 days be provided for commenting. They indicated the 30 days given is adequate because this is a narrow rule (though it’s 184 pages…).
As was the case with the DOL rule and the H-1B specialty occupation rule, DHS skipped the required review with OMB. This could also make the rule vulnerable in litigation.
The new rule allows for ranking and selection based on OES wage levels.
- USCIS will look at the highest OES wage level that the offered wage exceeds for the relevant occupation code and in the area of intended employment.
- It will 1st look to wage level IV and then go down through level I and below. Private wage surveys will be considered equivalent to level I and below.
- If there are more registrations at a particular wage than the projected number needed to meet the applicable numerical allocation, USCIS will randomly select registrations within that wage level needed to meet the numerical allocation.
- If the H-1B worker will work in multiple locations, USCIS will rank based on the lowest correspondence OES wage level that the offered wage will equal or exceed.
- When there is no current OES wage info for the position, USCIS will rank based on the OES wage level that corresponds to the requirements for the position.
USCIS may deny or revoke approval of a subsequent new or amended petition filed by the petition, or a related entity, on behalf of the same beneficiary, if USCIS determines the new filing is an attempt to unfairly decreased the wage to a lower level.
DHS notes that on average, Level II is by far the most common. More than half of all petitions use that wage level.
274K registrations were submitted in last March’s H-1B lottery. 106K registrations were initially selected. In the 8/20 second drawing, another 18,315 registrations were selected.
DHS analyzed how the new rule will play out for the regular cap based on the last 2 year’s prior filings. Level III and Level IV would have gotten 100% of those submitted. 75% to Level II. 0% to Level I & Below.
For the advanced degree cap, 100% of Level III and IV. 20% of Level II would be. 0% of Level I and Below.
DHS is hoping that the rule incentivizes employers to pay at the higher levels to improve their odds.