Proposed Rule2025-18473
Weighted Selection Process for Registrants and Petitioners Seeking To File Cap-Subject H-1B Petitions
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Published
September 24, 2025
Issuing agencies
Homeland Security Department
Abstract
The U.S. Department of Homeland Security (DHS) proposes to amend its regulations governing the process by which U.S. Citizenship and Immigration Services (USCIS) selects H-1B registrations for unique beneficiaries for filing of H-1B cap-subject petitions (or H-1B petitions for any year in which the registration requirement is suspended). DHS proposes to implement a weighted selection process that would generally favor the allocation of H-1B visas to higher skilled and higher paid aliens, while maintaining the opportunity for employers to secure H-1B workers at all wage levels, to better serve the Congressional intent for the H-1B program.
Full Text
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<title>Federal Register, Volume 90 Issue 183 (Wednesday, September 24, 2025)</title>
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[Federal Register Volume 90, Number 183 (Wednesday, September 24, 2025)]
[Proposed Rules]
[Pages 45986-46021]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-18473]
[[Page 45985]]
Vol. 90
Wednesday,
No. 183
September 24, 2025
Part II
Department of Homeland Security
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8 CFR Part 214
Weighted Selection Process for Registrants and Petitioners Seeking To
File Cap-Subject H-1B Petitions; Proposed Rule
Federal Register / Vol. 90, No. 183 / Wednesday, September 24, 2025 /
Proposed Rules
[[Page 45986]]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Part 214
[CIS No. 2820-25; DHS Docket No. USCIS-2025-0040]
RIN 1615-AD01
Weighted Selection Process for Registrants and Petitioners
Seeking To File Cap-Subject H-1B Petitions
AGENCY: U.S. Citizenship and Immigration Services, DHS.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The U.S. Department of Homeland Security (DHS) proposes to
amend its regulations governing the process by which U.S. Citizenship
and Immigration Services (USCIS) selects H-1B registrations for unique
beneficiaries for filing of H-1B cap-subject petitions (or H-1B
petitions for any year in which the registration requirement is
suspended). DHS proposes to implement a weighted selection process that
would generally favor the allocation of H-1B visas to higher skilled
and higher paid aliens, while maintaining the opportunity for employers
to secure H-1B workers at all wage levels, to better serve the
Congressional intent for the H-1B program.
DATES: Written comments on the notice of proposed rulemaking (NPRM)
must be submitted on or before October 24, 2025. Written comments on
the associated information collections 1615-0144 and 1615-0009 must be
submitted on or before November 24, 2025. The electronic Federal Docket
Management System will accept comments before midnight Eastern time at
the end of that day.
ADDRESSES: You may submit comments on the entirety of this proposed
rulemaking package, identified by DHS Docket No. USCIS-2025-0040
through the Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. In
accordance with 5 U.S.C. 553(b)(4), the summary of this rule found
above may also be found at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow the
website instructions for submitting comments.
Comments submitted in a manner other than via <a href="https://www.regulations.gov">https://www.regulations.gov</a>, including emails or letters sent to DHS or USCIS
officials, will not be considered comments on the proposed rule and may
not receive a response from DHS. Please note that DHS and USCIS cannot
accept any comments that are hand-delivered or couriered. In addition,
DHS and USCIS cannot accept comments contained on any form of digital
media storage devices, such as CDs/DVDs and USB drives. USCIS is also
not accepting mailed comments at this time. If you cannot submit your
comment by using <a href="https://www.regulations.gov">https://www.regulations.gov</a>, please contact the
Regulatory Coordination Division, Office of Policy and Strategy, U.S.
Citizenship and Immigration Services, U.S. Department of Homeland
Security, by telephone at (240) 721-3000 for alternate instructions.
FOR FURTHER INFORMATION CONTACT: Business and Foreign Workers Division,
Office of Policy and Strategy, U.S. Citizenship and Immigration
Services, U.S. Department of Homeland Security, 5900 Capital Gateway
Drive, Camp Springs, MD 20746; telephone (240) 721-3000 (not a toll-
free call).
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Public Participation
II. Background
A. Purpose and Summary of the Proposed Regulatory Action
B. Legal Authority
C. The H-1B Visa Program's Numerical Cap and Exemptions
D. Wage Requirement
E. Need for Reform and Rationale for Proposed Rule
F. Current Selection Process
III. Discussion of Proposed Rule
A. Required Information on the Registration and the Petition
B. Process for Weighting and Selecting Registrations
C. Process for Selecting Petitions in the Event of Suspended
Registration
D. H-1B Cap-Subject Petition Filing Following Registration
E. Process Integrity
F. Severability
IV. Statutory and Regulatory Requirements
A. Executive Orders 12866 (Regulatory Planning and Review),
13563 (Improving Regulation and Regulatory Review), and 14192
(Unleashing Prosperity Through Deregulation)
B. Regulatory Flexibility Act of 1980
C. Unfunded Mandates Reform Act of 1995
D. Executive Order 13132 (Federalism)
E. Executive Order 12988 (Civil Justice Reform)
F. Executive Order 13175 (Consultation and Coordination With
Indian Tribal Governments)
G. National Environmental Policy Act
H. Paperwork Reduction Act of 1995
Table of Abbreviations
BLS--U.S. Bureau of Labor Statistics
CBA--collective bargaining agreement
CFR--Code of Federal Regulations
CPI-U--Consumer Price Index for All Urban Consumers
DHS--U.S. Department of Homeland Security
DOD--U.S. Department of Defense
DOL--U.S. Department of Labor
ETA--Employment and Training Administration
FR--Federal Register
FY--Fiscal Year
HR--human resources
HSA--Homeland Security Act of 2002
INA--Immigration and Nationality Act
LCA--Labor Condition Application for Nonimmigrant Workers
NEPA--National Environmental Policy Act
NPRM--notice of proposed rulemaking
OES--Occupational Employment Statistics
OEWS--Occupational Employment and Wage Statistics
OFLC--Office of Foreign Labor Certification
OMB--Office of Management and Budget
OPQ--Office of Performance and Quality
OPS--Office of Policy and Strategy
PRA--Paperwork Reduction Act of 1995
PRD--Policy Research Division
Pub. L.--Public Law
PWD--prevailing wage determination
RFA--Regulatory Flexibility Act of 1980
RIA--regulatory impact analysis
RIN--Regulation Identifier Number
SBA--U.S. Small Business Administration
SCOPS--Service Center Operations
Secretary--Secretary of Homeland Security
SOC--Standard Occupational Classification
UMRA--Unfunded Mandates Reform Act 1995
U.S.C.--United States Code
USCIS--U.S. Citizenship and Immigration Services
I. Public Participation
DHS invites all interested parties to participate in this
rulemaking by submitting written data, views, comments, and arguments
on all aspects of this proposed rule. DHS also invites comments that
relate to the economic, environmental, or federalism effects that might
result from this proposed rule. Comments must be submitted in English,
or an English translation must be provided. Comments that will provide
the most assistance to USCIS in implementing these changes will
reference a specific portion of the proposed rule, explain the reason
for any recommended change, and include data, information, or authority
that support such recommended change. Comments submitted in a manner
other than via <a href="https://www.regulations.gov">https://www.regulations.gov</a>, including emails or letters
sent to DHS or USCIS officials, will not be considered comments on the
proposed rule and may not receive a response from DHS.
Instructions: If you submit a comment, you must include the agency
name (U.S. Citizenship and Immigration Services) and the DHS Docket No.
USCIS-2025-0040 for this rulemaking. Please note all submissions will
be posted, without change, to the Federal eRulemaking Portal at <a href="https://www.regulations.gov">https://www.regulations.gov</a>, and will include any personal information you
provide. Therefore, submitting this information makes it public. You
may wish to consider limiting the amount of
[[Page 45987]]
personal information that you provide in any voluntary public comment
submission you make to DHS. DHS may withhold information provided in
comments from public viewing that it determines may impact the privacy
of an individual or is offensive. For additional information, please
read the Privacy and Security Notice available at <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Docket: For access to the docket and to read background documents
or comments received, go to <a href="https://www.regulations.gov">https://www.regulations.gov</a>, referencing
DHS Docket No. USCIS-2025-0040. You may also sign up for email alerts
on the online docket to be notified when comments are posted or a final
rule is published.
II. Background
A. Purpose and Summary of the Proposed Regulatory Action
DHS proposes to amend its regulations governing the selection
process for registrations for H-1B cap subject petitions. Under the
existing H-1B registration process, prospective petitioners (also known
as registrants) seeking to file H-1B cap-subject petitions must first
electronically register for each prospective beneficiary. USCIS then
runs the H-1B selection process to randomly select unique beneficiaries
based on properly submitted electronic registrations. If the unique
beneficiary is randomly selected, then each registrant that registered
for that beneficiary receives a registration selection notice and may
file an H-1B cap-subject petition on their behalf.
DHS proposes to amend the process through which it selects
registrations for unique beneficiaries to move away from a purely
random selection process to a weighted selection process. This proposal
would cover registrations for petitions subject to the regular cap and
those asserting eligibility for the advanced degree exemption. The
proposal would also change how USCIS selects petitions in circumstances
where USCIS has suspended the registration process (for instance,
because of technical issues with the electronic registration system).
Specifically, the proposal would weight registrations (or
petitions) for selection generally based on each beneficiary's
equivalent wage levels. When random selection is required because USCIS
receives more registrations than USCIS projects to be needed to meet
the numerical allocations, USCIS would conduct a weighted selection
among the registrations for unique beneficiaries (or petitions)
received generally based on the highest Occupational Employment and
Wage Statistics (OEWS) wage level that the beneficiary's proffered wage
would equal or exceed for the relevant Standard Occupational
Classification (SOC) code in the area(s) of intended employment. The
proffered wage is the wage that the employer intends to pay the
beneficiary.
Under the proposed process, registrations for unique beneficiaries
or petitions would be assigned to the relevant OEWS wage level and
entered into the selection pool as follows: registrations for unique
beneficiaries or petitions assigned wage level IV would be entered into
the selection pool four times, those assigned wage level III would be
entered into the selection pool three times, those assigned wage level
II would be entered into the selection pool two times, and those
assigned wage level I would be entered into the selection pool one
time. Each unique beneficiary would only be counted once toward the
numerical allocation projections, regardless of how many registrations
were submitted for that beneficiary or how many times the beneficiary
is entered in the selection pool. This proposed weighting and selection
process would not alter the prevailing wage level associated with a
given position for U.S. Department of Labor (DOL) purposes, which is
informed by a comparison of the requirements for the proffered position
to the normal requirements for the occupational classification.\1\
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\1\ DOL, Employment and Training Administration (ETA),
``Prevailing Wage Determination Policy Guidance: Nonagricultural
Immigration Programs'' (revised Nov. 2009), <a href="https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/NPWHC_Guidance_Revised_11_2009.pdf">https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/NPWHC_Guidance_Revised_11_2009.pdf</a>.
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Through the proposed regulatory revisions, DHS aims to implement
the numerical cap in a way that incentivizes employers to offer higher
wages, or to petition for positions requiring higher skills and higher
skilled aliens, that are commensurate with higher wage levels. The
proposed process would favor the allocation of H-1B visas to higher
skilled and higher paid aliens, while maintaining the opportunity for
employers to secure H-1B workers at all wage levels.
B. Legal Authority
The Secretary of Homeland Security (Secretary)'s authority for
these proposed regulatory amendments is found in various sections of
the Immigration and Nationality Act (INA or the Act), 8 U.S.C. 1101 et
seq., and the Homeland Security Act of 2002 (HSA), Public Law 107-296,
116 Stat. 2135, 6 U.S.C. 101 et seq. General authority for issuing this
proposed rule is found in section 103(a) of the INA, 8 U.S.C. 1103(a),
which authorizes the Secretary to administer and enforce the
immigration and nationality laws and establish such regulations as the
Secretary deems necessary for carrying out such authority, as well as
section 112 of the HSA, 6 U.S.C. 112, which vests all of the functions
of DHS in the Secretary and authorizes the Secretary to issue
regulations.\2\ Further authority for these proposed regulatory
amendments is found in:
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\2\ Although several provisions of the INA discussed in this
NPRM refer exclusively to the ``Attorney General,'' such provisions
are now to be read as referring to the Secretary of Homeland
Security by operation of the HSA. See 6 U.S.C. 202(3), 251, 271(b),
542 note, 552(d), 557; 8 U.S.C. 1103(a)(1), (g), 1551 note; Nielsen
v. Preap, 586 U.S. 392, 397 n.2 (2019); see also 6 U.S.C. 522
(``Nothing in this chapter, any amendment made by this chapter, or
in section 1103 of Title 8, shall be construed to limit judicial
deference to regulations, adjudications, interpretations, orders,
decisions, judgments, or any other actions of the Secretary of
Homeland Security or the Attorney General.'').
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<bullet> Section 101(a)(15)(H)(i)(b) of the INA, 8 U.S.C.
1101(a)(15)(H)(i)(b), which establishes the H-1B nonimmigrant
classification;
<bullet> Section 214(a)(1) of the INA, 8 U.S.C. 1184(a)(1), which
authorizes the Secretary to prescribe, by regulation, the time and
conditions of the admission of nonimmigrants;
<bullet> Section 214(c)(1) of the INA, 8 U.S.C. 1184(c)(1), which,
inter alia, authorizes the Secretary to prescribe how an importing
employer may petition for nonimmigrant workers, including nonimmigrants
described at section 101(a)(15)(H)(i)(b) of the INA, 8 U.S.C.
1101(a)(15)(H)(i)(b), as well as the form of the petition and the
information that an importing employer must provide in the petition;
<bullet> Section 214(g) of the INA, 8 U.S.C. 1184(g), which, inter
alia, prescribes the H-1B numerical limitations, various exceptions to
those limitations, and the period of authorized admission for H-1B
nonimmigrants;
<bullet> Section 214(i) of the INA, 8 U.S.C. 1184(i), which sets
forth the definition and requirements of a ``specialty occupation'';
<bullet> Section 235(d)(3) of the INA, 8 U.S.C. 1225(d)(3), which
authorizes ``any immigration officer . . . to administer oaths and to
take and consider evidence of or from any person touching the privilege
of any alien or person he believes or suspects to be an alien to enter,
reenter, transit through, or reside in the United States or concerning
any matter which is material and relevant to the enforcement of [the
INA] and the administration of [DHS]'';
[[Page 45988]]
<bullet> Section 287(b) of the INA, 8 U.S.C. 1357(b), which
authorizes the taking and consideration of evidence ``concerning any
matter which is material or relevant to the enforcement of [the INA]
and the administration of [DHS]'';
<bullet> Section 101(b)(1)(F) of the HSA, 6 U.S.C. 111(b)(1)(F),
which provides that a primary mission of DHS is to ``ensure that the
overall economic security of the United States is not diminished by
efforts, activities, and programs aimed at securing the homeland'';
<bullet> Section 402 of the HSA, 6 U.S.C. 202, which charges the
Secretary with ``[e]stablishing and administering rules \3\ . . .
governing the granting of visas or other forms of permission . . . to
enter the United States'' and ``[e]stablishing national immigration
enforcement policies and priorities''; see also HSA sec. 428, 6 U.S.C.
236; and
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\3\ Section 102(e) of the HSA, 6 U.S.C. 112(e), provides that
``the issuance of regulations by the Secretary shall be governed by
the provisions of chapter 5 of title 5, except as specifically
provided in this chapter, in laws granting regulatory authorities
that are transferred by this chapter, and in laws enacted after
November 25, 2002.''
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<bullet> Section 451(a)(3) and (b) of the HSA, 6 U.S.C. 271(a)(3)
and (b), transferring to USCIS the authority to adjudicate petitions
for nonimmigrant status, establish policies for performing that
function, and set national immigration services policies and
priorities.
C. The H-1B Visa Program's Numerical Cap and Exemptions
The H-1B visa program allows U.S. employers to temporarily hire
foreign workers to perform services in a specialty occupation, services
related to a U.S. Department of Defense (DOD) cooperative research and
development project or coproduction project, or services of
distinguished merit and ability in the field of fashion modeling. See
INA 101(a)(15)(H)(i)(b), 8 U.S.C. 1101(a)(15)(H)(i)(b); Immigration Act
of 1990, Public Law 101-649, sec. 222(a)(2), 104 Stat. 4978 (Nov. 29,
1990); 8 CFR 214.2(h). A specialty occupation is defined as an
occupation that requires the (1) theoretical and practical application
of a body of highly specialized knowledge, and (2) attainment of a
bachelor's or higher degree in the specific specialty (or its
equivalent) as a minimum qualification for entry into the occupation in
the United States. See INA 214(i)(l), 8 U.S.C. 1184(i)(l).
Congress has established limits on the number of foreign workers
who may be granted initial H-1B nonimmigrant visas or status each
fiscal year (FY) (commonly known as the ``cap''). See INA sec. 214(g),
8 U.S.C. 1184(g). The total number of foreign workers who may be
granted initial H-1B nonimmigrant status during any fiscal year may not
exceed 65,000. See INA sec. 214(g), 8 U.S.C. 1184(g). Certain petitions
are exempt from the 65,000 numerical limitation.\4\ See INA sec.
214(g)(5) and (7), 8 U.S.C. 1184(g)(5) and (7). The annual exemption
from the 65,000 cap for H-1B workers who have earned a qualifying U.S.
master's or higher degree may not exceed 20,000 foreign workers. See
INA sec. 214(g)(5)(C), 8 U.S.C. 1184(g)(5)(C).
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\4\ Exempt petitions are petitions for (1) employment (or an
offer of employment) at an institution of higher education or a
related affiliated nonprofit entity, (2) employment (or an offer of
employment) at a nonprofit research organization or a government
research organization, or (3) H-1B workers who have earned a
qualifying U.S. master's degree or higher degree. Also exempt are
those petitions for beneficiaries who have previously been counted
under the cap, unless eligible for a full 6-years of authorized
admission when the petition is filed, and who seek to change jobs or
extend their stay during their 6-year period of authorized
admission, and those exempt from the 6-year period of authorized
admission limitation based on section 104(c) or 106(a) and (b) of
the American Competitiveness in the Twenty-First Century Act (AC21),
Public Law 106-313, 114 Stat. 1254 (Oct. 17, 2000), as amended by
section 11030A of the 21st Century Department of Justice
Appropriations Authorization Act, Public Law 107-273, 116 Stat. 1758
(2002).
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D. Wage Requirement
An H-1B petitioner generally must file with DOL a Labor Condition
Application for Nonimmigrant Workers (LCA) attesting, among other
things, that it will pay the beneficiary a wage that is either (1) the
actual wage that it pays to all other individuals with similar
experience and qualifications for the specific employment in question
or (2) the prevailing wage for the occupational classification in the
area of intended employment based on the best information available at
the time of filing the application, whichever is greater.\5\ The H-1B
petitioner must also attest that it will provide working conditions for
the beneficiary that will not adversely affect the working conditions
of workers similarly employed. See INA sec. 212(n)(1)(A)(i)-(ii), 8
U.S.C. 1182(n)(1)(A)(i)-(ii); 20 CFR part 655, subpart H. DOL
regulations state that the wage requirement includes the employer's
obligation to offer benefits and eligibility for benefits provided as
compensation for services to the H-1B nonimmigrant on the same basis,
and in accordance with the same criteria, as the employer offers to
similarly employed U.S. workers. See 20 CFR 655.731(c)(3). DOL
regulations additionally provide that the employer must afford working
conditions to the H-1B beneficiary on the same basis and in accordance
with the same criteria as it affords to its U.S. workers who are
similarly employed, and without adverse effect upon the working
conditions of such U.S. workers. See 20 CFR 655.732(a).
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\5\ An H-1B petition for H-1B2 DOD research and development
project positions or services is exempt from the LCA requirement.
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The LCA, certified by DOL, requires that the petitioner specify,
among other information: The SOC code, the wage that an employer will
pay the nonimmigrant worker, the prevailing wage rate for the job
opportunity, the source of the prevailing wage rate, and the applicable
prevailing wage level for the job opportunity if the OEWS survey is the
source of the prevailing wage rate.\6\ If there is an applicable
collective bargaining agreement (CBA) that was negotiated at arms-
length between a union and the employer that contains a wage rate
applicable to the occupation, then the CBA must be used to determine
the prevailing wage for a petitioner's job opportunity. 20 CFR
655.731(a)(2). In the absence of an applicable CBA, the petitioner
generally has the option of determining the prevailing wage by one of
three avenues: (1) obtaining a prevailing wage determination (PWD)
issued by DOL; \7\ (2) obtaining the prevailing wage from an
independent authoritative source that satisfies the requirements set
forth in 20 CFR 655.731(b)(3)(iii)(B); or (3) obtaining the prevailing
wage from another legitimate source of wage information that satisfies
the requirements set forth in 20 CFR 655.731(b)(3)(iii)(C). 20 CFR
655.731(a)(2)(ii)(A)-(C). An employer may also elect to rely on a wage
determination issued pursuant to the provisions of the Davis Bacon Act,
Public Law 107-217 (Aug. 21, 2002), as amended, 40 U.S.C. 276a et seq.,
or the McNamara-O'Hara Service Contract Act of 1965, Public Law 89-286
(Oct. 22, 1965), as amended, 41 U.S.C. 351 et seq., if applicable. 20
CFR 655.731(b)(3)(i). When using the OEWS survey to determine the
prevailing wage for a particular job opportunity, the first step is to
select the most relevant occupational classification by examining the
employer's job opportunity and comparing it to the tasks, knowledge,
and work activities generally associated with relevant
[[Page 45989]]
occupations to ensure that the most relevant occupational code has been
selected.\8\ Then, the relevant prevailing wage level is selected by
comparing the requirements for the job opportunity to the occupational
requirements, that is, the tasks, knowledge, skills, and specific
vocational preparation (education, training, and experience) generally
required for acceptable performance in that occupation.\9\ DOL utilizes
four prevailing wage levels classified as ``entry,'' ``qualified,''
``experienced,'' and ``fully competent,'' respectively, relative to the
occupation.\10\
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\6\ DOL, ETA, Form ETA-9035 and ETA-9035e, Labor Condition
Application for Nonimmigrant Workers, Items F.a.10-14 (expires Oct.
31, 2027), <a href="https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/Form%20ETA-9035_exp%2010.31.2027.pdf">https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/Form%20ETA-9035_exp%2010.31.2027.pdf</a>.
\7\ DOL, ETA, ``Prevailing Wage Information and Resources,''
<a href="https://www.dol.gov/agencies/eta/foreign-labor/wages">https://www.dol.gov/agencies/eta/foreign-labor/wages</a> (last visited
May 2, 2025).
\8\ DOL, ETA, ``Prevailing Wage Determination Policy Guidance:
Nonagricultural Immigration Programs'' (revised Nov. 2009), <a href="https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/NPWHC_Guidance_Revised_11_2009.pdf">https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/NPWHC_Guidance_Revised_11_2009.pdf</a>.
\9\ See id.
\10\ See id.
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E. Need for Reform and Rationale for Proposed Rule
Congressional intent behind creating the H-1B program was, in part,
to help U.S. employers fill labor shortages in positions requiring
highly skilled or highly educated workers.\11\ A key goal of the
program at its inception was to help U.S. employers obtain the
temporary employees they need to meet their business needs to remain
competitive in the global economy.\12\ To address legitimate
countervailing concerns of the adverse impact foreign workers could
have on U.S. workers, Congress enacted a number of measures intended to
protect U.S. workers, including the annual numerical limitations.
Congress was concerned that a surplus of foreign labor could depress
wages for all workers in the long run and recognized the cap as a means
of ``continuous monitoring of all admissions.'' \13\
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\11\ See H.R. Rep. 101-723(I) (1990), as reprinted in 1990
U.S.C.C.A.N. 6710, 6721.
\12\ See Bipartisan Policy Center, ``Immigration in Two Acts,''
at 7 (Nov. 2015), <a href="https://bipartisanpolicy.org/wp-content/uploads/2019/03/BPC-Immigration-Legislation-Brief.pdf">https://bipartisanpolicy.org/wp-content/uploads/2019/03/BPC-Immigration-Legislation-Brief.pdf</a>, citing H.R. Rep. 101-
723(I) supra note 10 at 6721 (``At the time [1990], members of
Congress were also concerned about U.S. competitiveness in the
global economy and sought to use legal immigration as a tool in a
larger economic plan, stating that `it is unlikely that enough U.S.
workers will be trained quickly enough to meet legitimate employment
needs, and immigration can and should be incorporated into an
overall strategy that promotes the creation of the type of workforce
needed in an increasingly global economy.' '').
\13\ See H.R. Conf. Rep. 101-955, at 126 (1990), as reprinted in
1990 U.S.C.C.A.N. 6784, 6790-91.
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The demand for H-1B workers subject to the annual numerical
limitations has exceeded the availability of visa numbers every year
for more than a decade.\14\ This high demand created a rush of
simultaneous submissions at the beginning of the H-1B cap petition
period, preventing application of the numerical limitations based
solely on the order in which the petitions are received by USCIS. See
Liu v. Mayorkas, 588 F. Supp. 3d 43, 48 (D.D.C. 2022) (discussing the
high demand for H-1B visas, the operational challenges USCIS faced
administering the H-1B cap because of the high demand, and the creation
of the registration requirement).
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\14\ Total Number of H-1B Cap Registration Submissions and
Selections, FY 2021-FY 2025, USCIS Office of Performance and Quality
(OPQ), data queried 3/2025, TRK #17518; Total Number of H-1B Cap-
Subject Petitions Submitted, FY 2016-FY 2020, USCIS Service Center
Operations (SCOPS), June 2019. See also Congressional Research
Service, ``Temporary Professional Foreign Workers: Background,
Trends, and Policy Issues'' (June 9, 2022), <a href="https://www.congress.gov/crs-product/R47159">https://www.congress.gov/crs-product/R47159</a> (``Employer petitions for new H-
1B workers have routinely exceeded the statutory numerical limits--
in some years exceeding limits during the first week or even on the
first day that petitions are accepted by USCIS.'').
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Congress directed DHS to process earlier-filed petitions before
later-filed petitions, see INA sec. 214(g)(3), 8 U.S.C. 1184(g)(3)
(stating that aliens who are subject to the numerical limitations will
be ``issued visas (or otherwise provided nonimmigrant status) in the
order in which the petitions are filed''),\15\ but did not define what
it means to ``file'' a petition, or how to order petitions that are
filed during the same timeframe.
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\15\ See also Registration Requirement for Petitioners Seeking
to File H-1B Petitions on Behalf of Cap-Subject Aliens, 84 FR 888,
896 (Jan. 31, 2019) (noting that ``a literal application of this
statutory language [to issue visas or otherwise provide H-1B status
in the order in which the petitions are filed, down to the second]
would lead to an absurd result'' because ``[s]uch a literal
application would necessarily mean that processing delays pertaining
to a petition earlier in the petition filing order would preclude
issuance of a visa or provision of status to all other H-1B
petitions later in the petition filing order.'' Therefore, USCIS'
``longstanding approach to implementing the numerical limitation has
been to project the number of petitions needed to reach the
numerical limitation. . . .'').
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The Secretary has discretion to prescribe rules to fill such gaps
in the INA. As noted earlier in this preamble, the Secretary has broad
authority to administer and enforce the INA, establish such regulations
as the Secretary deems necessary for carrying out such authority, and
to prescribe the time and conditions under which an alien may be
admitted to the United States as a nonimmigrant and how an importing
employer may petition for nonimmigrant workers. See INA secs. 103(a),
214(a)(1), and 214(c)(1), 8 U.S.C. 1103(a), 1184(a)(1), and 1184(c)(1).
DHS has leveraged these authorities to make significant
improvements to the H-1B selection process over the years in response
to the high demand, consistent with the purpose and structure of the
annual numerical limitations. The registration process, for instance,
selects among ``registrations submitted electronically over a
designated period of time to ensure the fair and orderly administration
of the numerical allocations.'' 84 FR at 896.\16\
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\16\ DHS notes that the registration process, like the petition
process that applies when registration is suspended, faithfully
implements INA sec. 214(g)(3), 8 U.S.C. 1184(g)(3) by, among other
things, ensuring that earlier-filed registrations and petitions
receive priority over later ones. For instance, in addition to
allowing for a more efficient administration of the annual numerical
allocations, the process accounts for the possibility that DHS will
receive an insufficient number of simultaneously submitted
registrations during the initial registration to meet the H-1B
regular cap; in such a circumstance, registration will remain open
until USCIS has received a sufficient number of registrations for
unique beneficiaries to meet the cap. See 8 CFR
214.2(h)(8)(iii)(A)(5)(i); see also 84 FR at 896 (explaining that,
where an insufficient number of registrations have been received
during the initial registration period, USCIS would select all of
the registrations properly submitted during the initial registration
period, and that registrations submitted after the initial
registration would continue to be selected on a rolling basis until
such time as a sufficient number of registrations have been
received).
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DHS's random selection process is a similar type of gap-filling
measure. When this process was previously challenged, DHS
prevailed.\17\ The court observed that ``[i]t is not difficult to
envision a scenario where many more petitions arrive on the final
receipt date than are needed to fill the statutory cap, and processing
them `in order' . . . may also be random and arbitrary.'' \18\ This
court importantly held that ``Congress left to the discretion of USCIS
how to handle simultaneous submissions'' and ``USCIS has discretion to
decide how best to order those petitions.'' \19\ In short, DHS has
authority to engage in reasoned decision making with regard to how to
administer the H-1B petitioning process (including whether to require a
registration process as an antecedent procedural step to be eligible to
file an H-1B cap-subject petition), and how to best select among
simultaneously submitted H-1B registrations or petitions.\20\ Congress
provided DHS
[[Page 45990]]
with the authority to better ensure a fair, orderly, and efficient
allocation of H-1B cap numbers based on reasoned decision making,
including consideration of the overall statutory scheme and purpose of
the classification: the selection of highly skilled and paid
nonimmigrants in the United States while protecting the wages and
working conditions of U.S. workers.
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\17\ See Walker Macy LLC v. USCIS, 243 F. Supp. 3d 1156 (D. Or.
2017).
\18\ Id. at 1174.
\19\ Id. at 1176.
\20\ See Loper Bright Enters. v. Raimondo, 603 U.S. 369, 395
(2024) (explaining that a statute's meaning may be that the agency
is authorized to exercise a degree of discretion and empowered to
prescribe rules to fill in statutory gaps based on ``reasoned
decision making''); see also Liu v. Mayorkas, 588 F.Supp.3d 43, 55
(D.D.C. 2022) (finding that the registration requirement does not
violate the INA, is not ultra vires, and that registration is merely
``an antecedent procedural step to be eligible to file an H-1B cap[-
subject] petition''); Walker Macy LLC v. USCIS, 243 F. Supp. 3d 1156
(D. Or. 2017). DHS acknowledges, as DHS did in the 2020 NPRM, that
in the preamble to the 2019 H-1B Registration final rule, DHS stated
that prioritization of registration selection on factors other than
degree level, such as salary, would require statutory changes. 85 FR
at 69244 (citing 83 FR at 914). As DHS stated in the 2020 NPRM and
as explained earlier in this section, however, DHS's interpretation
of the statute has changed.
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DHS acknowledges that it has implemented regulations over the years
that provide for a random selection from all petitions or registrations
that occur within a certain timeframe. See, e.g., 70 FR 23775 (May 5,
2005), 84 FR 888 (Jan. 31, 2019). However, while the current random
selection of petitions or registrations is reasonable, DHS believes it
is neither the optimal, nor the exclusive method of selecting
registrations or petitions toward the numerical allocations when more
registrations or petitions, as applicable, are simultaneously submitted
than projected as needed to reach the numerical allocations. Pure
randomization does not serve the ends of the H-1B program or
Congressional intent to help U.S. employers fill labor shortages in
positions requiring highly skilled workers.\21\ Under the current
random selection process, in every fiscal year from FY 2019 through FY
2024, petitions for beneficiaries at wage level III and wage level IV
were the least represented among all wage levels in cap-subject H-1B
filings, both under the regular cap and the advanced-degree
exemption.\22\
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\21\ See H.R. Rep. 101-723(I) (1990), as reprinted in 1990
U.S.C.C.A.N. 6710, 6721 (stating ``The U.S. labor market is now
faced with two problems that immigration policy can help to correct.
The first is the need of American business for highly skilled,
specially trained personnel to fill increasingly sophisticated jobs
for which domestic personnel cannot be found and the need for other
workers to meet specific labor shortages.'').
\22\ USCIS OPQ, CLAIMS3 and ELIS, queried 3/2025, TRK #17265.
LCA data from DOL. Disclosure Files for LCA Programs (H-1B, H-1B1,
E-3), FY-2018-FY-2024. DOL data downloaded from <a href="https://www.dol.gov/agencies/eta/foreign-labor/performance">https://www.dol.gov/agencies/eta/foreign-labor/performance</a>.
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As discussed previously in this preamble, wage levels are used in
determining a prevailing wage for a given occupation in a given
location under the OEWS survey based on the education, training, and
experience required for the specific position. Wage level I, which DOL
has set at approximately the 17th percentile of the OEWS wage
distribution for the relevant occupation in the relevant location,
applies to positions requiring ``entry'' level workers; wage level II,
set at approximately the 34th percentile, applies to positions
requiring ``qualified'' workers; wage level III, set at approximately
the 50th percentile, applies to positions requiring ``experienced''
workers; and wage level IV, set at approximately the 67th percentile,
applies to positions requiring ``fully competent'' workers.\23\ In
other words, wage levels III and IV--the two wage levels that meet or
exceed the median wage (50th percentile) of the OEWS wage distribution
for a specific occupation and location--are the least represented wage
levels in H-1B petitions under the current process.
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\23\ See, e.g., Strengthening Wage Protections for the Temporary
and Permanent Employment of Certain Aliens in the United States, 85
FR 63872, 63875 (Oct. 8, 2020) (later vacated); Wage Methodology for
the Temporary Non-Agricultural Employment H-2B Program, 80 FR 24146,
24148 n.6 (Apr. 29, 2015); Daniel Costa & Ron Hira, Economic Policy
Institute, ``H-1B Visas and Prevailing Wage Level'' (May 4, 2020),
<a href="https://www.epi.org/publication/h-1b-visas-and-prevailing-wage-levels">https://www.epi.org/publication/h-1b-visas-and-prevailing-wage-levels</a>.
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DHS believes a better reasoned policy, consistent with the intent
of the H-1B statutory scheme, is to utilize the numerical cap in a way
that incentivizes a U.S. employer's recruitment of beneficiaries for
positions requiring the highest skill levels within the visa
classification or otherwise earning the highest wages in an
occupational classification and area of intended employment, which
generally correlate with higher skill levels. Put simply, because
demand for H-1B visas has exceeded the annual supply for more than a
decade,\24\ DHS prefers that simultaneously submitted registrations for
cap-subject H-1B visas be selected in a manner that favors
beneficiaries earning the highest wages relative to their SOC codes and
area(s) of intended employment.
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\24\ Total Number of H-1B Cap Registration Submissions and
Selections, FY 2021--FY 2025, USCIS OPQ, data queried 3/2025, TRK
#17518; Total Number of H-1B Cap-Subject Petitions Submitted, FY
2016-FY 2020, USCIS SCOPS, June 2019. See also Congressional
Research Service, ``Temporary Professional Foreign Workers:
Background, Trends, and Policy Issues'' (June 9, 2022), <a href="https://www.congress.gov/crs-product/R47159">https://www.congress.gov/crs-product/R47159</a>.
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DHS believes that salary generally is a reasonable proxy for skill
level.\25\ DHS data show a correlation between higher salaries and
higher skill and wage levels.\26\ As a position's required skill level
increases relative to the occupation, so, too, may the wage level, and
necessarily, the corresponding prevailing wage.\27\ A proffered wage
that corresponds to the prevailing wage rate reflecting a higher wage
level is generally a reasonable proxy for the higher level of skill
required for the position. DHS recognizes, however, that some employers
may choose to offer a higher proffered wage to a certain beneficiary to
be more competitive in the H-1B selection process. In that situation,
while the proffered wage may not necessarily reflect the skill level
required for the position in the strict sense of DOL's PWD, the
proffered wage still is a reasonable reflection of the value the
employer has placed on that specific beneficiary. DHS believes that an
employer who offers a higher wage than required by the prevailing wage
level does so because that higher wage is a clear reflection of the
beneficiary's value to the employer, which, even if not related to the
position's skill level per se, reflects the unique qualities the
beneficiary possesses. Accordingly, the changes proposed in this rule
would better ensure that the H-1B cap selection process favors
relatively higher-skilled, higher-valued, or higher-paid foreign
workers rather than continuing to allow numerically-limited cap numbers
to be allocated predominantly to workers in lower skilled or lower paid
positions.\28\
[[Page 45991]]
Ultimately, prioritizing in the previously described manner would
incentivize employers to offer higher wages or higher skilled positions
to H-1B workers and disincentivize the existing widespread use of the
H-1B program to fill lower paid or lower skilled positions without
effectively precluding beneficiaries with lower wage levels or entry
level positions.\29\
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\25\ See DOL, ETA, ``Wage Methodology for the Temporary Non-
Agricultural Employment H-2B Program,'' 76 FR 3452, 3453 (Jan. 19,
2011) (it is a ``largely self-evident proposition that workers in
occupations that require sophisticated skills and training receive
higher wages based on those skills.''); Daniel Costa & Ron Hira,
Economic Policy Institute, ``H-1B Visas and Prevailing Wage Level''
(May 4, 2020), <a href="https://www.epi.org/publication/h-1b-visas-and-prevailing-wage-levels">https://www.epi.org/publication/h-1b-visas-and-prevailing-wage-levels</a>. (``Specialized skills should command high
wages; such skills are typically a function of inherent capability,
education level, and experience. It would be reasonable to expect
that these workers should receive wages higher than the median
wage.'').
\26\ For example, in Computer and Mathematical Occupations, the
FY 2024 national median salary of H-1B workers for Level I was
$89,253; for Level II was $106,000; for Level III was $140,000; and
for Level IV was $163,257. USCIS OPQ, SAS PME C3 Consolidated, VIBE,
DOL OFLC TLC Disclosure Data, queried 4/2025, TRK #17347.
\27\ DOL, ETA, ``Prevailing Wage Determination Policy Guidance:
Nonagricultural Immigration Programs'' (revised Nov. 2009), <a href="https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/NPWHC_Guidance_Revised_11_2009.pdf">https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/NPWHC_Guidance_Revised_11_2009.pdf</a> (noting that a wage level
increase may be warranted if a position's requirements indicate
skills that are beyond those of an entry level worker).
\28\ See Daniel Costa & Ron Hira, Economic Policy Institute,
``H-1B Visas and Prevailing Wage Level'' (May 4, 2020), <a href="https://www.epi.org/publication/h-1b-visas-and-prevailing-wage-levels/">https://www.epi.org/publication/h-1b-visas-and-prevailing-wage-levels/</a>
(pointing to data that ``all H-1B employers, but especially the
largest employers, use the H-1B program either to hire relatively
lower-wage workers (relative to the wages paid to other workers in
their occupation) who possess ordinary skills or to hire skilled
workers and pay them less than the true market value''); George
Fishman, Center for Immigration Studies, ``Elon Musk is Right about
H-1Bs'' (Jan. 9, 2025), <a href="https://cis.org/Report/Elon-Musk-Right-about-H1Bs">https://cis.org/Report/Elon-Musk-Right-about-H1Bs</a> (noting the benefit of giving preference to prospective
H-1B workers who are ``the best and brightest (those promised the
highest salaries)''); Norm Matloff, Barron's, ``Where are the `Best
and Brightest?' '' (June 8, 2013), <a href="https://www.barrons.com/articles/SB50001424052748703578204578523472393388746">https://www.barrons.com/articles/SB50001424052748703578204578523472393388746</a> (``The data show that
most of the foreign tech workers are ordinary folks doing ordinary
work.''); Norman Matloff, Center for Immigration Studies, ``H-1Bs:
Still Not the Best and the Brightest'' (May 12, 2008), <a href="https://cis.org/Report/H1Bs-Still-Not-Best-and-Brightest">https://cis.org/Report/H1Bs-Still-Not-Best-and-Brightest</a> (presenting ``data
analysis showing that the vast majority of the foreign workers--
including those at most major tech firms--are people of just
ordinary talent, doing ordinary work.''); Adam Ozimek, Connor
O'Brien, & John Lettieri, Economic Innovation Group, ``Exceptional
by Design'' (Jan. 2025), <a href="https://eig.org/wp-content/uploads/2025/01/Exceptional-by-Design.pdf">https://eig.org/wp-content/uploads/2025/01/Exceptional-by-Design.pdf</a> (``Wages are a clear expression of the
value firms expect a worker to contribute, yet the H-1B gives no
preference to workers with higher salary offers.'').
\29\ See Daniel Costa & Ron Hira, Economic Policy Institute,
``H-1B Visas and Prevailing Wage Level'' (May 4, 2020), <a href="https://www.epi.org/publication/h-1b-visas-and-prevailing-wage-levels/">https://www.epi.org/publication/h-1b-visas-and-prevailing-wage-levels/</a>.
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While DHS prefers that cap-subject H-1B visas be allocated in a
manner that favors beneficiaries earning the highest wages, DHS also
recognizes the value in maintaining the opportunity for employers to
secure H-1B workers at all wage levels. In this respect, this proposed
rule differs from the wage-based selection rule that DHS finalized in
2021. On November 2, 2020, DHS proposed a rule (85 FR 69236) to amend
its regulations governing the process by which USCIS selects H-1B
registrations for filing of H-1B cap-subject petitions, or H-1B
petitions for any year in which the registration requirement will be
suspended. The rule was finalized on January 8, 2021 (2021 H-1B
Selection Final Rule, 86 FR 1676), and its implementation was delayed
shortly thereafter.\30\ However, after the U.S. District Court for the
Northern District of California vacated it,\31\ the rule was
subsequently withdrawn and was therefore never implemented.\32\ Under
the 2021 H-1B Selection Final Rule, USCIS would have ranked and
selected registrations generally based on the highest Occupational
Employment Statistics (OES) \33\ prevailing wage level that the
proffered wage equaled or exceeded for the relevant SOC code and
area(s) of intended employment, beginning with level IV and proceeding
in descending order with levels III, II, and I. The 2021 H-1B Selection
Final Rule was expected to result in the likelihood that registrations
for level I wages would not be selected, as well as a reduced
likelihood that registrations for level II would be selected. 86 FR
1676, 1724 (Jan. 8, 2021). DHS believes the selection process finalized
under the 2021 H-1B Selection Final Rule was a reasonable approach to
facilitate the admission of higher skilled or higher paid workers.
However, DHS now believes that rule did not capture the optimal
approach because it effectively left little or no opportunity for the
selection of lower wage level or entry level workers, some of whom may
still be highly skilled.\34\ Unlike the 2021 H-1B Selection Final Rule,
under this proposed rule, USCIS would assign a weight to--rather than
rank and select--registrations generally based on their corresponding
OEWS wage level.\35\ By engaging in a wage-level-based weighting of
registrations for unique beneficiaries, DHS would better ensure that
initial H-1B visas and status grants would more likely go to the
highest skilled or highest paid beneficiaries, while not effectively
precluding those at lower wage levels. Facilitating the admission of
higher skilled workers ``would benefit the economy and increase the
United States' competitive edge in attracting the `best and the
brightest' in the global labor market,'' consistent with the goals of
the H-1B program.\36\
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\30\ The rule was scheduled to go into effect on March 9, 2021.
On February 8, 2021, DHS issued a final rule delaying the effective
date of the H-1B Selection Final Rule to December 31, 2021.
Modification of Registration Requirement for Petitioners Seeking to
File Cap-Subject H-1B Petitions; Delay of Effective Date, 86 FR 8543
(Feb. 8, 2021).
\31\ Chamber of Commerce of the U.S. v. DHS, No. 4:20-cv-07331,
2021 WL 4198518 (N.D. Cal. Sept. 15, 2021) (vacating the rule as
improperly issued but not reaching the merits of plaintiffs'
alternative arguments).
\32\ Following several months of litigation, on September 15,
2021, the court vacated the rule and remanded the matter to DHS and
DHS subsequently withdrew the rule. On December 22, 2021, DHS issued
a final rule to withdraw the final rule published on January 8,
2021, because that rule had been vacated by a Federal district
court. Modification of Registration Requirement for Petitioners
Seeking to File Cap-Subject H-1B Petitions, Implementation of
Vacatur, 86 FR 72516 (Dec. 22, 2021).
\33\ The 2021 H-1B Selection Final Rule referred to the OES wage
level based on terminology used at the time. However, the OES
program has since started using the name Occupational Employment and
Wage Statistics (OEWS). See <a href="https://www.bls.gov/oes/notices/2023/occupational-employment-and-wage-statistics-oews.htm">https://www.bls.gov/oes/notices/2023/occupational-employment-and-wage-statistics-oews.htm</a> (last visited
May 2, 2025).
\34\ For example, an entry level (level I) worker in an
occupation classified by the Occupational Information Network
(O*NET) as a Job Zone 5 occupation, which generally requires a
graduate degree, may be higher skilled than a qualified (level II)
worker in a Job Zone 4 occupation, which generally requires a
bachelor's degree. See O*NET Online, ``Job Zones Overview,'' <a href="https://www.onetonline.org/help/online/zones">https://www.onetonline.org/help/online/zones</a> (last visited Apr. 11, 2025).
O*NET, which maintains a database of occupational information, is
developed under the sponsorship of ETA. See O*NET Online, ``About
O*NET,'' <a href="https://www.onetcenter.org/overview.html">https://www.onetcenter.org/overview.html</a> (last visited Apr.
11, 2025).
\35\ The weighted selection method proposed in this rule is
similar to an ``alternative'' approach that DHS described (and
requested public comments on) in the 2020 NPRM. 85 FR 69236, 69242
(Nov. 2, 2020). As DHS received only one responsive comment, which
offered no substantive rationale in support of or against the
alternative approach, DHS declined to consider it further in the
final rule. 86 FR 1676, 1709 (Jan. 8, 2021).
\36\ See Muzaffar Chishti & Stephen Yale-Loehr, Migration Policy
Institute, ``The Immigration Act of 1990: Unfinished Business a
Quarter-Century Later'' (July 2016), <a href="https://www.migrationpolicy.org/sites/default/files/publications/1990-Act_2016_FINAL.pdf">https://www.migrationpolicy.org/sites/default/files/publications/1990-Act_2016_FINAL.pdf</a> (``Sponsors of [the Immigration Act of 1990,
which created the H-1B program as it exists today,] believed that
facilitating the admission of higher-skilled immigrants would
benefit the economy and increase the United States' competitive edge
in attracting the `best and the brightest' in the global labor
market.'').
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F. Current Selection Process
DHS implemented the electronic H-1B registration process after
determining that it could introduce a cost-saving, innovative solution
to facilitate the selection of H-1B cap-subject petitions toward the
annual numerical allocations. 84 FR 888 (Jan. 31, 2019). Under the
current regulation, all petitioners seeking to file an H-1B cap-subject
petition must first electronically submit a registration for each
beneficiary on whose behalf they seek to file an H-1B cap-subject
petition, unless USCIS suspends the registration requirement. 8 CFR
214.2(h)(8)(iii)(A)(1). In February 2024, building on its programmatic
experience since implementing the H-1B registration process, DHS
amended its regulations to implement a beneficiary-centric selection
process for H-1B registrations to ensure each beneficiary would have
the same chance of being selected, regardless of the number of
registrations submitted on his or her behalf, among other integrity
measures. 89 FR 7456 (Feb. 2, 2024). Under this beneficiary-centric
selection process, registrations are counted based on the number of
unique beneficiaries who are registered. 8 CFR 214.2(h)(8)(iii)(A)(4).
Each unique beneficiary is counted once toward the random selection,
regardless of how many registrations are submitted for that
beneficiary. Id. A prospective petitioner whose registration is
selected is eligible to file an H-1B cap-subject petition based on the
selected registration during the associated filing period. 8 CFR
214.2(h)(8)(iii)(A)(1).
[[Page 45992]]
USCIS monitors the number of H-1B registrations for unique
beneficiaries it receives during the announced registration period. At
the conclusion of that period, if more registrations for unique
beneficiaries are submitted than projected as needed to reach the
numerical allocations, USCIS randomly selects from among unique
beneficiaries for whom registrations were properly submitted, the
number of unique beneficiaries projected as needed to reach the H-1B
numerical allocations. 8 CFR 214.2(h)(8)(iii)(A)(5) and (6). Under this
random H-1B registration selection process, USCIS first selects from a
pool of all unique beneficiaries, including those eligible for the
advanced degree exemption, a sufficient number of unique beneficiaries
projected as needed to reach the regular cap. Id. Then from the
remaining unselected beneficiaries who are eligible for the advanced
degree exemption, USCIS selects a sufficient number of unique
beneficiaries projected as needed to meet this exemption. Id.
A prospective petitioner that properly registered for a beneficiary
who is selected is notified of the selection and instructed that the
petitioner is eligible to file an H-1B cap-subject petition for the
beneficiary named in the selected registration within a filing period
that is at least 90 days in duration. 8 CFR 214.2(h)(8)(iii)(D)(3).
When registration is required, a petitioner seeking to file an H-1B
cap-subject petition is not eligible to file the petition unless the
petition is based on a valid, selected registration for the beneficiary
named in the petition.\37\ 8 CFR 214.2(h)(8)(iii)(D)(1).
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\37\ During the initial filing period, if USCIS does not receive
a sufficient number of petitions projected as needed to reach the
numerical allocations, USCIS will select additional unique
beneficiaries, or reopen the registration process, as applicable, to
receive registrations for the number of unique beneficiaries
projected as needed to reach the numerical allocations. See 8 CFR
214.2(h)(8)(iii)(A)(7).
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In the event that there is an insufficient number of unique
beneficiaries during the annual initial registration period to meet the
number projected as needed to reach the numerical limitation, USCIS
would select all of the unique beneficiaries for whom registrations
were properly submitted during the initial registration period and
notify all of the registrants that they may proceed with the filing of
an H-1B cap-subject petition based on their selected registration(s). 8
CFR 214.2(h)(8)(iii)(A)(5) and (6). USCIS would keep the registration
period open beyond the initial registration period, allowing for the
submission of registrations for additional beneficiaries, until it
determines that a sufficient number of unique beneficiaries have
registrations properly submitted on their behalf to reach the
applicable numerical limitations. Id. When necessary, USCIS may
randomly select the remaining number of unique beneficiaries deemed
necessary to meet the applicable numerical limitation from among the
registrations for unique beneficiaries received on the final
registration date. Id.
The current selection process also allows for selection based
solely on the submission of petitions in any year in which the
registration process is suspended due to technical or other issues. 8
CFR 214.2(h)(8)(iv)(B). That process also allows for random selection
in any year in which the number of petitions received on the final
receipt date exceeds the number projected to meet the applicable
numerical limitation. Id.
III. Discussion of Proposed Rule
DHS proposes to amend the way USCIS selects unique beneficiaries,
and the registrations submitted on their behalf for H-1B cap-subject
petitions (or petitions, if the registration process is suspended),
including those eligible for the advanced degree exemption, as follows.
A. Required Information on the Registration and the Petition
For purposes of the weighting and selection process proposed in
this rulemaking, a registrant would be required to select the box for
the highest OEWS wage level (``wage level IV,'' ``wage level III,''
``wage level II,'' or ``wage level I'') that the beneficiary's
proffered wage generally equals or exceeds for the relevant SOC code in
the area(s) of intended employment.\38\ See proposed 8 CFR
214.2(h)(8)(iii)(A)(4)(i). The registrant would also be required to
provide the appropriate SOC code of the proffered position and the area
of intended employment that served as the basis for the OEWS wage level
indicated on the registration, in addition to any other information
required on the electronic registration form (and on the H-1B petition)
as specified in form instructions. The proffered wage,\39\ SOC code,
and area(s) of intended employment would all be indicated on the LCA
filed with the petition. While an LCA is not a requirement for
registration, a valid registration must represent a bona fide job offer
(see proposed 8 CFR 214.2(h)(10)(ii)), and each prospective petitioner
must make the necessary certifications (see proposed 8 CFR
214.2(h)(8)(iii)(A)(4)(i)), when submitting a registration, which,
among other things, include that the registration is based on a bona
fide job offer and that the prospective petitioner intends to file an
H-1B petition on behalf of the beneficiary named in the registration if
the beneficiary is selected. Therefore, DHS expects each prospective
petitioner to know and be able to provide the relevant equivalent wage
level and SOC code when submitting a registration.
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\38\ While wage levels on many registrations are likely to be
based on the OEWS prevailing wage, in some circumstances (as
discussed in this proposed rule), the registrant would derive the
appropriate wage level based on the provisions of this rule. For
example, where the prevailing wage is based on a private wage survey
and lower than OEWS wage level I, the registrant would select level
I, or where there is insufficient OEWS wage data, the registrant
would derive the appropriate wage level based on the DOL 2009
Prevailing Wage Guidance.
\39\ The proffered wage is the wage that the employer intends to
pay the beneficiary. On the LCA, the proffered wage is the ``wage
rate paid to nonimmigrant workers.'' DOL, ETA, Form ETA-9035 and
ETA-9035E, Labor Condition Application for Nonimmigrant Workers,
Item F.a.10 (expires Oct. 31, 2027), <a href="https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/Form%20ETA-9035_exp%2010.31.2027.pdf">https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/Form%20ETA-9035_exp%2010.31.2027.pdf</a>.
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For registrants relying on a prevailing wage that is not based on
the OEWS survey, if the proffered wage were less than the corresponding
level I OEWS wage, the registrant would select the ``wage level I'' box
on the registration form. See proposed 8 CFR 214.2(h)(8)(iii)(A)(4)(i).
If the proffered wage is expressed as a range, the registrant would
select the OEWS wage level that the lowest wage in the range will equal
or exceed. This helps ensure fairness and prevents employers from
artificially inflating a beneficiary's selection odds. If the H-1B
beneficiary would work in multiple locations, or in multiple positions
if the registrant is an agent, the registrant would select the box for
the lowest equivalent wage level among the corresponding wage levels
for each of those locations or each of those positions and would list
the location corresponding to that lowest equivalent wage level as the
area of intended employment.\40\ Id. For example, if the beneficiary
would work as a software developer (SOC code 15-1252) with a proffered
wage of $175,000 in both Sacramento, California, where such wage
exceeds wage level IV, and San Francisco, California, where the highest
level that such wage meets or
[[Page 45993]]
exceeds would be wage level II, the registrant would select the ``wage
level II'' box on the registration form and list San Francisco as the
area of intended employment.\41\ The proposal to require a registrant
to select the lowest among the corresponding wage levels if a
beneficiary would work in multiple locations, or in multiple positions
if the registrant is an agent, is meant to prevent gaming of the
weighted selection process. This removes a potential incentive to
inflate wage levels through strategic location or position choices and
helps ensure integrity of the selection process.\42\
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\40\ Providing the area of intended employment that corresponds
to the lowest equivalent wage level at registration would not
preclude the registrant, if selected and eligible to file a
petition, from listing any additional concurrent work location(s) on
the petition.
\41\ See DOL, ``OFLC Wage Search,'' Software Developer,
Sacramento, CA, <a href="https://flag.dol.gov/wage-data/wage-search">https://flag.dol.gov/wage-data/wage-search</a> (last
visited Apr. 11, 2025); DOL, ``OFLC Wage Search,'' Software
Developer, San Francisco, CA, <a href="https://flag.dol.gov/wage-data/wage-search">https://flag.dol.gov/wage-data/wage-search</a> (last visited Apr. 11, 2025).
\42\ For instance, in the case of multiple positions, if DHS
were to instead require registrants to select the box for the
highest corresponding OEWS wage level that the proffered wage were
to equal or exceed, then a petitioner could place the beneficiary in
a lower paying position for most of the time and a higher paying
position for only a small percent of the time, but use that higher
paying position to increase their chances of being selected in the
registration process. Similarly, in the case of multiple locations,
a petitioner could place the beneficiary in a higher paying locality
for only a small percent of time but use that higher paying locality
to increase their chances of being selected in the registration
process.
---------------------------------------------------------------------------
DHS recognizes that some occupations do not have current OEWS
prevailing wage information available on DOL's Office of Foreign Labor
Certification (OFLC) Wage Search website.\43\ In the limited instance
where there is no current OEWS prevailing wage information for the
proffered position, such that there are not four wage levels for the
occupational classification or there are not wage data for the area of
intended employment, the registrant would follow DOL guidance on PWDs
to determine which OEWS wage level to select on the registration.\44\
DHS expects each registrant would be able to identify the appropriate
SOC code for the proffered position because all petitioners are
required to identify the appropriate SOC code for the proffered
position on the LCA, even when there are no applicable wage level data
available or the OEWS survey is not used as the prevailing wage source
on the LCA. Using the SOC code and the previously mentioned DOL
guidance, all registrants would be able to determine the appropriate
OEWS wage level for purposes of completing the registration, regardless
of whether they were to specify an OEWS wage level or utilize the OEWS
program as the prevailing wage source on an LCA.
---------------------------------------------------------------------------
\43\ OFLC, a component of DOL, administers the OFLC Wage Search
for OEWS prevailing wage information at <a href="https://flag.dol.gov/wage-data/wage-search">https://flag.dol.gov/wage-data/wage-search</a> (last visited Apr. 11, 2025).
\44\ DOL, ETA, ``Prevailing Wage Determination Policy Guidance:
Nonagricultural Immigration Programs'' (revised Nov. 2009), <a href="https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/NPWHC_Guidance_Revised_11_2009.pdf">https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/NPWHC_Guidance_Revised_11_2009.pdf</a>.
---------------------------------------------------------------------------
The information required for the registration process provided in
proposed 8 CFR 214.2(h)(8)(iii)(A)(4)(i) would also be collected on the
petition, regardless of whether USCIS suspends the registration
requirement. Specifically, in accordance with form instructions each
petitioner would be required to select the highest OEWS wage level on
the petition that the beneficiary's proffered wage generally equals or
exceeds for the relevant SOC code in the area(s) of intended
employment. See proposed 8 CFR 214.2(h)(8)(iv)(B). If the beneficiary's
proffered wage is lower than OEWS wage level I, because it is based on
a prevailing wage from another legitimate source (other than OEWS) or
an independent authoritative source, the petitioner must select ``wage
level I.'' Id. If the beneficiary will work in multiple locations, or
in multiple positions if the petitioner is an agent, the petitioner
must select the lowest corresponding OEWS wage level that the
beneficiary's proffered wage will equal or exceed. Id. Where there is
no current OEWS prevailing wage information for the beneficiary's
proffered position, the petitioner must select the appropriate wage
level that corresponds to the requirements of the beneficiary's
proffered position using DOL's prevailing wage guidance. Id. The
petitioner must also provide the SOC code of the proffered position in
accordance with form instructions. The OEWS wage level selected on the
petition must reflect the corresponding OEWS wage level as of the date
that the registration underlying the petition was submitted. However,
if the registration process is suspended, the OEWS wage level selected
must reflect the corresponding OEWS wage level as of the date that the
petition is submitted. Petitioners must submit evidence of the basis of
the wage level selected on the registration as of the date that the
registration underlying the petition was submitted, or, in the case of
suspended registration, as of the date the petition is submitted. Such
evidence could include, but is not limited to, a printout from the DOL
OFLC Wage Search website for the beneficiary's SOC code and area(s) of
intended employment as of the relevant date.
B. Process for Weighting and Selecting Registrations
With regard to selection of unique beneficiaries and the
registrations submitted on their behalf, because the beneficiary-
centric selection process is needed to prevent unscrupulous actors from
unfairly increasing the odds that a beneficiary would be selected, DHS
proposes to implement a wage-based selection process that would operate
in conjunction with the existing beneficiary-centric selection process.
Under this process the number of registrations submitted on a
beneficiary's behalf does not impact his or her chance of being
selected. See proposed 8 CFR 214.2(h)(8)(iii)(A)(4).
Specifically, USCIS would continue to count registrations based on
the number of unique beneficiaries who are registered. See proposed 8
CFR 214.2(h)(8)(iii)(A)(4). When a random selection of registrations is
necessary, DHS proposes that USCIS would enter each unique beneficiary
into the selection pool in a weighted manner based on an assigned OEWS
wage level. USCIS would assign each unique beneficiary an OEWS wage
level based on the lowest OEWS wage level among all registrations
submitted on the beneficiary's behalf. See proposed 8 CFR
214.2(h)(8)(iii)(A)(4)(ii). Under this provision, where only one
registration is submitted on a beneficiary's behalf, USCIS would assign
the beneficiary to the OEWS wage level entered by the registrant in
accordance with the form instructions. See proposed 8 CFR
214.2(h)(8)(iii)(A)(4)(i) and (ii). However, for example, a beneficiary
for whom a level I registration and a level IV registration have been
submitted would be assigned to wage level I for the purpose of weighted
selection. The proposal to assign the beneficiary to the lowest OEWS
wage level among all of the registrations submitted on his or her
behalf is intended to remove an incentive for multiple registrants to
submit frivolous registrations with artificially high wage levels in an
attempt to unfairly increase a beneficiary's chances of selection.\45\
---------------------------------------------------------------------------
\45\ For instance, if USCIS were to instead assign a beneficiary
to the highest wage level among all the registrations submitted on
his or her behalf, or even an average of such wage levels, an
unscrupulous employer might have an incentive to work with another
entity to submit a frivolous level IV registration on the
beneficiary's behalf to increase his or her chance of selection.
---------------------------------------------------------------------------
If more unique beneficiaries had registrations properly submitted
on their behalf during the annual initial registration period than
projected as needed to reach the applicable numerical allocation, USCIS
would
[[Page 45994]]
enter each unique beneficiary into the selection pool in a weighted
manner as follows: a beneficiary assigned wage level IV would be
entered into the selection pool four times, a beneficiary assigned wage
level III would be entered into the selection pool three times, a
beneficiary assigned wage level II would be entered into the selection
pool two times, and a beneficiary assigned wage level I would be
entered into the selection pool one time. See proposed 8 CFR
214.2(h)(8)(iii)(A)(4)(ii) and (5)(ii). The random selection would be
computer-generated and would only select a unique beneficiary one time,
regardless of how many registrations were submitted for that
beneficiary or how many times the beneficiary is entered in the
selection pool.
During an annual initial registration period that will last a
minimum of 14 calendar days (and start at least 14 calendar days before
the earliest date on which H-1B cap-subject petitions may be filed for
a particular fiscal year), if there are fewer unique beneficiaries with
properly submitted registrations on their behalf than projected to
reach the regular cap, USCIS would select all registrations properly
submitted. This would be regardless of the wage level. USCIS would
thereafter continue to accept registrations until it determined a final
registration date to ensure a sufficient number of unique beneficiaries
projected to reach the regular cap. See proposed 8 CFR
214.2(h)(8)(iii)(A)(5)(i). If more unique beneficiaries had
registrations properly submitted on their behalf on the final
registration date than needed to reach the regular cap, USCIS would
select unique beneficiaries from among those registrations properly
submitted on the final registration date in a weighted manner based on
the beneficiary's assigned wage level as described previously. Id.
Thereafter, USCIS would complete the same weighting and selection
process to meet the advanced degree exemption. If a sufficient number
of unique beneficiaries had registrations properly submitted on their
behalf during the annual initial registration period than projected as
needed to reach the advanced degree exemption, USCIS would select
unique beneficiaries who are eligible for the advanced degree exemption
in a weighted manner on the basis of the beneficiary's assigned wage
level. See proposed 8 CFR 214.2(h)(8)(iii)(A)(6)(ii). During the annual
initial registration period, if fewer unique beneficiaries had
registrations properly submitted on their behalf than projected as
needed to reach the advanced degree exemption, USCIS would select all
registrations properly submitted during the annual initial registration
period, regardless of wage level, and would continue to accept
registrations until it were to determine a final registration date
based on the submission of registrations for a sufficient number for
unique beneficiaries to reach the advanced degree exemption. See
proposed 8 CFR 214.2(h)(8)(iii)(A)(6)(i). If more unique beneficiaries
had registrations properly submitted on their behalf on the final
registration date than are needed to reach the advanced degree
exemption, USCIS would select unique beneficiaries from among those
registrations properly submitted on the final registration date in a
weighted manner based on the beneficiary's assigned wage level as
described previously. Id.
If a beneficiary is selected, each registrant that properly
submitted a registration on that beneficiary's behalf would be notified
of the beneficiary's selection and would be eligible to file a petition
on that beneficiary's behalf during the applicable petition filing
period. See proposed 8 CFR 214.2(h)(8)(iii)(A)(4).
C. Process for Selecting Petitions in the Event of Suspended
Registration
With regard to petition selection if the electronic registration
process were suspended, DHS proposes that USCIS would assign each
petition to the equivalent OEWS wage level selected in accordance with
form instructions. See proposed 8 CFR 214.2(h)(8)(iv)(B). In the event
of suspended registration, if more petitions are received on the final
receipt date than projected as needed to reach the applicable numerical
limitation, USCIS would weight and select the petitions received as
follows: a petition assigned to wage level IV would be entered into the
selection pool four times, a petition assigned to wage level III would
be entered into the selection pool three times, a petition assigned to
wage level II would be entered into the selection pool two times, and a
petition assigned to wage level I would be entered into the selection
pool one time. See proposed 8 CFR 214.2(h)(8)(iv)(B)(1) and (2).
D. H-1B Cap-Subject Petition Filing Following Registration
Unless registration is suspended, a petitioner would be eligible to
file an H-1B petition for a beneficiary who may be counted under
section 214(g)(1)(A) of the Act, or eligible for exemption under
section 214(g)(5)(C) of the Act, only if the petition is based on a
valid selected registration. See proposed 8 CFR 214.2(h)(8)(iii)(D)(1).
An H-1B petition filed on behalf of a beneficiary would have to contain
and be supported by the same identifying information and position
information, including SOC code, provided in the selected registration
and indicated on the LCA used to support the petition. Id. Such
petition would also have to include a proffered wage that equals or
exceeds the prevailing wage for the corresponding OEWS wage level in
the registration for the SOC code in the area(s) of intended
employment.\46\ Id. DHS recognizes that a beneficiary may have multiple
work locations. While the electronic registration would require the
registrant to list only one work location--specifically, the work
location corresponding to the lowest equivalent wage level as the area
of intended employment--the petition would have to list all addresses
where the beneficiary will work. If the area of intended employment
provided in the registration is not listed in the petition, USCIS may,
in its discretion, determine that a change in the area(s) of intended
employment would be permissible, provided such change is consistent
with a bona fide job offer at the time of registration, as discussed in
greater detail later in this preamble.
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\46\ In circumstances where the prevailing wage is based on a
private wage survey and is lower than level I, the proffered wage on
the H-1B petition would need to equal or exceed the prevailing wage
reflected in the private survey used by the registrant to register
the beneficiary at OEWS level I.
---------------------------------------------------------------------------
E. Process Integrity
As is currently required, the entity submitting a registration and/
or petition would be required to certify the veracity of the contents
of such submissions. If USCIS were to determine that the statement of
facts contained on the registration or petition submission was
inaccurate, fraudulent, materially misrepresents any fact, or was not
true and correct, USCIS would deny the petition or, if approved, would
revoke the petition approval. See 8 CFR 214.2(h)(10)(ii) and
(11)(iii)(A)(2). In addition, USCIS would deny (or revoke, if approved)
an H-1B cap-subject petition if it were not based on a valid selected
registration for the beneficiary named or identified in the petition.
See 8 CFR 214.2(h)(10)(ii) and (11)(iii)(A)(6). DHS proposes to revise
8 CFR 214.2(h)(10)(ii) to clarify that a valid registration must
represent a bona fide job offer. See proposed 8 CFR 214.2(h)(10)(ii).
As stated previously, the proposed rule would require an H-1B
petition filed after registration selection to contain and be supported
by the same
[[Page 45995]]
identifying information and position information, including SOC code,
provided in the selected registration and indicated on the LCA used to
support the petition. See proposed 8 CFR 214.2(h)(8)(iii)(D)(1). Such
petition must also include a proffered wage that equals or exceeds the
prevailing wage for the corresponding OEWS wage level in the
registration for the SOC code in the area(s) of intended employment as
described in 8 CFR 214.2(h)(8)(iii)(A)(4)(i). See proposed 8 CFR
214.2(h)(8)(iii)(D)(1). These requirements are necessary to prevent
unscrupulous actors from entering information at the registration stage
to increase their chance of selection without intending to employ the
beneficiary under the same terms indicated at registration. DHS also
expects that the area of intended employment provided at registration
would be reflected as a worksite in the subsequently filed petition.
However, recognizing that there are legitimate reasons that an intended
work location might change between the time of registration and the
time of filing the petition, DHS is proposing that USCIS may, in its
discretion, find that a change in the area(s) of intended employment
would be permissible, provided such change is consistent with a bona
fide job offer at the time of registration. For instance, an employer
with multiple offices might decide to place the beneficiary at a
different office than originally intended at a wage that equals or
exceeds the same equivalent wage level for the new location as that
indicated on the registration. See id.
DHS also recognizes that there are legitimate reasons that a
petition would list more work locations than the intended work location
listed on the registration, namely, when the beneficiary would work in
multiple locations or in multiple positions if the registrant is an
agent and is required to list the location with the lowest
corresponding wage level. Using the earlier example of the beneficiary
who would work in both Sacramento, California and San Francisco,
California where the registration only listed San Francisco as the area
of intended employment but the petition would list both Sacramento,
California and San Francisco, California as work locations, USCIS would
not consider this to be a ``change in the area(s) of intended
employment'' under proposed 8 CFR 214.2(h)(8)(iii)(D)(1).
Additionally, under the existing registration system, petitioners
must already certify that each registration they submit reflects a
legitimate job offer, and this rule would revise 8 CFR 214.2(h)(10)(ii)
to clarify that a valid registration must represent a bona fide job
offer.\47\ As such, each registrant should be able to identify the
appropriate SOC code and wage level for the proffered position at the
registration stage. The requirements enumerated at proposed 8 CFR
214.2(h)(8)(iii)(D)(1) are necessary for program integrity and align
with existing job offer requirements.
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\47\ In this context, a ``legitimate job offer'' and a ``bona
fide job offer'' mean the same thing. DHS proposes to use the phrase
``bona fide job offer'' to more closely align with the definition of
a ``United States employer'' at 8 CFR 214.2(h)(4)(ii), which
requires that the employer have ``a bona fide job offer for the
beneficiary to work within the United States.''
---------------------------------------------------------------------------
The proposed rule would also allow USCIS to deny a subsequent new
or amended petition filed by the petitioner, or a related entity, on
behalf of the same beneficiary if USCIS were to determine that the
filing of the new or amended petition was part of the petitioner's
attempt to unfairly increase the odds of selection during the
registration (or petition, if applicable) selection process, such as by
reducing the proffered wage to an amount that would be equivalent to a
lower wage level than that indicated on the original registration or
petition. See proposed 8 CFR 214.2(h)(10)(iii). In this context,
attempting to ``unfairly increase the odds of selection'' generally
refers to attempting to derive the benefit from the increased chance of
selection associated with a higher corresponding wage level without
having a bona fide job offer at the corresponding wage level selected
by the registrant during registration. Additionally, a new or amended
petition containing a proffered wage equivalent to a lower wage level
than that indicated on the original registration or petition may reveal
an attempt to ``unfairly increase the odds of selection'' or indicate
that the registration or petition did not in fact represent a bona fide
job offer, which would violate the requirement that a valid
registration represents a bona fide job offer. See proposed 8 CFR
214.2(h)(10)(ii).
DHS included the previously referenced example of reducing the
proffered wage to an amount that would be equivalent to a lower wage
level than that indicated on the original registration or petition in
the text of proposed 8 CFR 214.2(h)(10)(iii) for illustrative purposes,
but it is not the only scenario that could lead to a determination that
a new or amended petition was part of the petitioner's attempt to
unfairly increase the odds of selection during the selection process.
Similarly, if the new or amended petition included the same proffered
wage but changed the work location such that the proffered wage now
corresponded to a lower OEWS wage level for the new location than the
level indicated on the registration, USCIS could consider that change
in determining whether the new or amended petition was part of the
petitioner's attempt to unfairly increase the odds of selection. On the
other hand, USCIS would not deny a new or amended petition solely on
the basis of a different proffered wage or location if the wage
continues to meet or exceed the same OEWS wage level as listed on the
original petition. USCIS would consider the totality of the
circumstances when determining whether to deny a new or amended
petition filed in these scenarios.
If the new or amended petition were already approved, the proposed
regulation would similarly allow USCIS to revoke approval of such
petition on notice if it determines that the filing of the petition is
part of the petitioner's (or related entity's) attempt to unfairly
increase the odds of selection during the registration or petition
selection process, as applicable, such as by reducing the proffered
wage to an amount that would be equivalent to a lower wage level than
that indicated on the registration, or the original petition if the
registration process was suspended. See proposed 8 CFR
214.2(h)(11)(iii)(A)(8). USCIS would not, however, revoke approval
solely based on a different proffered wage if that wage meets or
exceeds the same corresponding OEWS wage level as listed on the
original petition.
Similar to how USCIS considers ``related entity'' for purposes of
the bar on multiple cap-subject H-1B filings under 8 CFR
214.2(h)(2)(i)(G), a ``related entity'' under proposed 8 CFR
214.2(h)(10)(iii) and (11)(iii)(A) may include a parent company,
subsidiary, or affiliate company, but would not be limited to only
those companies that are legally related to the petitioner through
corporate ownership and control. Some factors relevant to relatedness
may include familial ties, proximity of locations, leadership
structure, employment history, similar work assignments, and
substantially similar supporting documentation. USCIS would consider
the totality of the circumstances when determining whether a new or
subsequent petitioner is a ``related entity.'' \48\
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\48\ See USCIS, Policy Memorandum, PM-602-0159, Matter of S-
Inc., Adopted Decision 2018-02 (AAO Mar. 23, 2018).
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[[Page 45996]]
F. Severability
DHS is proposing that the provisions of this rule be severable from
one another as well as severable from the registration requirement more
broadly and the beneficiary-centric selection methodology. Should DHS
issue a final rule based on this proposed rule, and after any such rule
goes into effect, if any of the revisions of that final rule to
provisions in 8 CFR 214.2(h)(8), (10), and (11) are found to be invalid
or unenforceable by their terms or as applied to any person or
circumstance, DHS intends that they should nevertheless be construed so
as to continue to give the maximum effect to the provision(s) permitted
by law, unless any such provision is held to be wholly invalid and
unenforceable, in which event the revision(s) should be severed from
the remainder of the provisions and the holding should not affect the
other provisions or the application of those other provisions. For
instance, the rule's provisions for weighting and selecting
registrations are intended to be severable from the rule's provisions
for weighting and selecting petitions. For example, if the rule is
finalized as proposed, and the provisions pertaining to weighted
selection of petitions (if the registration process is suspended) are
enjoined or vacated, DHS intends for those provisions to be severable,
to the greatest extent possible, from the provisions pertaining to
weighted selection of registrations. Because these are alternative
methods of selection, depending on whether registration is required or
the registration process is suspended, the provisions pertaining to
weighted selection of registrations can and would be administered
independently from the provisions pertaining to weighted selection of
petitions. Similarly, this rule's provisions for weighting and
selecting registrations and petitions (as applicable) are intended to
be severable from existing regulations on H-1B registration generally
and beneficiary-centric registration in particular.
Although DHS does not propose to codify a severability clause in
the regulatory text, the Department wishes to emphasize its intent for
the provisions of this rule to be severable. The absence of codified
severability language is solely to avoid potential confusion within 8
CFR 214.2, which governs a wide range of nonimmigrant classifications
beyond the H-1B program and already contains multiple other
severability provisions. The absence of a proposed severability
provision in the regulatory text associated with this rulemaking is
intended to maintain regulatory text that is more readable and
streamlined, but it should not be taken to suggest that DHS's intent
regarding severability is any different here than it would be in
connection with a rule containing a severability clause.
IV. Statutory and Regulatory Requirements
A. Executive Orders 12866 (Regulatory Planning and Review), 13563
(Improving Regulation and Regulatory Review), and 14192 (Unleashing
Prosperity Through Deregulation)
Executive Orders 12866 (Regulatory Planning and Review) and 13563
(Improving Regulation and Regulatory Review) direct agencies to assess
the costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits. Executive Order 13563 emphasizes the importance of
quantifying both costs and benefits, of reducing costs, of harmonizing
rules, and of promoting flexibility. Executive Order 14192 (Unleashing
Prosperity Through Deregulation) directs agencies to significantly
reduce the private expenditures required to comply with Federal
regulations and provides that ``any new incremental costs associated
with new regulations shall, to the extent permitted by law, be offset
by the elimination of existing costs associated with at least 10 prior
regulations.''
This rule has been designated a ``significant regulatory action''
that is economically significant, under section 3(f)(1) of Executive
Order 12866. Accordingly, the rule has been reviewed by the Office of
Management and Budget.
This rule is not an Executive Order 14192 regulatory action because
it is being issued with respect to an immigration-related function of
the United States. The rule's primary direct purpose is to implement or
interpret the immigration laws of the United States (as described in
INA sec. 101(a)(17), 8 U.S.C. 1101(a)(17)) or any other function
performed by the U.S. Federal Government with respect to aliens. See
OMB Memorandum M-25-20, ``Guidance Implementing Section 3 of Executive
Order 14192, titled `Unleashing Prosperity Through Deregulation' ''
(Mar. 26, 2025).
Summary of Changes
As discussed in the preamble, the purpose of this NPRM is to amend
DHS regulations governing the process by which USCIS selects H-1B
registrations for filing of H-1B cap-subject petitions (or H-1B
petitions for any year in which the registration requirement will be
suspended), by implementing a process in which all unique
beneficiaries, while still randomly selected, would be weighted
generally according to the highest OEWS wage level that the proffered
wage equals or exceeds for the relevant SOC code in the area(s) of
intended employment. Specifically, USCIS would weight and select each
unique beneficiary (or petition, if registration is suspended) as
follows: a beneficiary (or petition) assigned to wage level IV would be
entered into the selection pool four times, a beneficiary (or petition)
assigned to wage level III would be entered into the selection pool
three times, a beneficiary (or petition) assigned to wage level II
would be entered into the selection pool two times, and a beneficiary
(or petition) assigned to wage level I would be entered into the
selection pool one time.
For the 10-year implementation period of the rule (FY2026 through
FY2035), DHS estimates the annual costs would be about $30 million. DHS
estimates the annual net benefits (undiscounted) would be approximately
$472 million in FY2026, $974 million in FY2027, $1,476 million in
FY2028, and $1,978 million in each year from FY2029 through FY2035. DHS
estimates the annualized net benefits of the rule would be about $1,642
million at 3 percent and $1,594 million at 7 percent. DHS estimates the
annual transfers (undiscounted) would be approximately $858 million in
FY2026, $1,717 million in FY2027, $2,575 million in FY2028, and $3,434
million in each year from FY2029 through FY2035. DHS estimates the
annualized transfers of the rule would be about $2,859 million at 3
percent and $2,778 million at 7 percent.
Table 1 provides a detailed summary of estimated quantifiable and
unquantifiable impacts of the proposed rule.
[[Page 45997]]
Table 1--Summary of Provisions and Impacts of the NPRM
----------------------------------------------------------------------------------------------------------------
Description of the
Proposed rule provisions proposed change Estimated costs/transfers of Estimated benefits of
to provisions provisions provisions
----------------------------------------------------------------------------------------------------------------
1. Required Information on the A registrant would Quantitative: Petitioners-- Quantitative:
Registration. be required to [squ] DHS estimates proposed costs Petitioners--
select the box would be $15 million due to the [squ] None.
for the highest additional time burden associated DHS/USCIS--
OEWS wage level with the registration tool. [squ] None.
that the DHS/USCIS-- Qualitative:
beneficiary's [squ] None. Petitioners--
wage generally Qualitative: Petitioners-- [squ] None.
equals or exceeds [squ] None. DHS/USCIS--
and also would be DHS/USCIS-- [squ] Submission of
required to [squ] None. additional wage level
provide the SOC information, the SOC
code for the code, and area of
proffered intended employment
position and the on the electronic
area of intended registration form
employment that would allow USCIS to
served as the further improve the
basis for the integrity of the H-1B
OEWS wage level cap selection
indicated on the processes.
registration.
2. Weighting and Selecting DHS proposes to Quantitative: Petitioners-- Quantitative:
Registrations (or petitions if implement a wage- [squ] None. Petitioners and H-1B
registration is suspended). based selection DHS/USCIS-- Workers--
process that [squ] None. [squ] Total benefits
would operate in Qualitative: Petitioners-- of $502 million in
conjunction with [squ] None. FY2026, $1,004
the existing Transfer: H-1B workers. million in FY2027,
beneficiary- [squ] Due to the proposed weighted $1,506 million in
centric selection registration selection process, FY2028, and $2,008
process for DHS estimates that $858 million of million in each year
registrations. wages would be transferred from from FY2029 through
When there is wage level I H-1B workers to FY2035 estimated in
random selection higher wage level H-1B workers in difference of wage
USCIS would enter FY2026, $1,717 million in FY2027, paid to the higher
each unique $2,575 million in FY2028, and wage level H-1B
beneficiary (or $3,434 million in each year from workers.
petition, as FY2029 through FY2035. This DHS/USCIS--
applicable) into transfer would be a cost to the [squ] By engaging in a
the selection wage level I H-1B worker who would wage-level-based
pool in a lose the wage associated with the weighting of
weighted manner: H-1B registration. This transfer registrations for
a beneficiary (or also would be a benefit to the unique beneficiaries,
petition) higher wage level H-1B workers who DHS would better
assigned wage would receive a wage associated ensure that initial H-
level IV would be with the H-1B registration. 1B visas and status
entered into the Petitioners-- grants would more
selection pool [squ] There would be an likely go to the
four times; level unquantifiable trans- higher skilled or
III, three times; higher paid
level II, two beneficiaries.
times; and level Facilitating the
I, one time. admission of higher
skilled workers
``would benefit the
economy and increase
the United States'
competitive edge in
attracting the `best
and the brightest' in
the global labor
market,'' consistent
with the goals of the
H-1B program.
Qualitative:
Petitioners--
[squ] None.
DHS/USCIS--
[squ] None.
fer from the petitioners who
would hire wage level I H-1B
workers to the petitioners who
would hire workers at higher
wage levels. This transfer
would be a cost in terms of
lost producer surplus to the
petitioners who registered at
wage level I and were not
selected due to the proposed
changes. This transfer would be
an unquantifiable benefit in
terms of gained producer
surplus to the petitioners who
registered at higher wage
levels and got their H-1B
registrations selected due to
the higher probability of
getting selected.
[squ] There would also be an
unquantified transfer and
benefit from an increase in
state and federal payroll taxes
paid to the government by the
petitioner.
DHS/USCIS--
[squ] None.
3. Required Information on the The information Quantitative: Petitioners-- Quantitative:
Petition. required for the [squ] DHS estimates this proposed Petitioners--
registration cost would be $15 million due to [squ] None.
process would the additional time burden DHS/USCIS--
also be collected associated with filing the H-1B [squ] None.
on the petition. petition. Qualitative:
Petitioners would DHS/USCIS-- Petitioners--
be required to [squ] None. [squ] None
submit evidence Qualitative: Petitioners-- DHS/USCIS--
of the basis of [squ] None. [squ] Submission of
the wage level DHS/USCIS-- additional
selected on the [squ] None. information on the
registration as petition form
of the date that (including wage level
the registration information and the
underlying the SOC code), and
petition was evidence of the basis
submitted. of the wage level
selected, would allow
USCIS to further
improve the integrity
of the H-1B cap
selection and
adjudication
processes.
[[Page 45998]]
4. Process Integrity........... The proposed rule Quantitative: Petitioners-- Quantitative:
would require an [squ] None. Petitioners--
H-1B petition DHS/USCIS-- [squ] None.
filed after [squ] None. DHS/USCIS--
registration Qualitative: Petitioners-- [squ] None.
selection to [squ] DHS estimates that the Qualitative:
contain and be proposed rule could lead to an Petitioners--
supported by the increase in the number of denials [squ] None.
same identifying or revocations of H-1B petitions. DHS/USCIS--
information and DHS/USCIS-- [squ] These proposed
position [squ] None. changes would lead to
information improved program
including OEWS integrity for USCIS.
wage level, SOC
code, and area of
intended
employment
provided in the
selected
registration and
indicated on the
LCA used to
support the
petition. The
proposed rule
would also allow
USCIS to deny a
subsequent new or
amended petition
or revoke an
approved petition
if USCIS were to
determine that
the filing of the
new or amended
petition was part
of the
petitioner's
attempt to
unfairly increase
odds of selection
during the
registration
selection process.
----------------------------------------------------------------------------------------------------------------
In addition to the impacts summarized in Table 1, and as required
by OMB Circular A-4, Table 2 presents the prepared accounting statement
showing the costs and benefits that would result in this proposed
rule.\49\
---------------------------------------------------------------------------
\49\ OMB, ``Circular A-4'' (Sept. 17, 2003),
<a href="http://trumpwhitehouse.archives.gov/sites/whitehouse.gov/files/omb/circulars/A4/a-4.pdf">trumpwhitehouse.archives.gov/sites/whitehouse.gov/files/omb/circulars/A4/a-4.pdf</a> (last visited Aug. 1, 2025).
Table 2--OMB A-4 Accounting Statement
[$ millions, FY 2023 *]
Time Period: FY 2026 through FY 2035.
----------------------------------------------------------------------------------------------------------------
Category Primary estimate Minimum estimate Maximum estimate Source citation
----------------------------------------------------------------------------------------------------------------
BENEFITS
----------------------------------------------------------------------------------------------------------------
Annualized Monetized Benefits at $1,672 Regulatory impact
3%. analysis (RIA).
----------------------------------------------------------------------------------------------------------------
Annualized Monetized Benefits at $1,625 RIA.
7%.
----------------------------------------------------------------------------------------------------------------
Annualized quantified, but N/A RIA.
unmonetized, benefits.
----------------------------------------------------------------------------------------------------------------
Qualitative (unquantified) --Submission of additional wage level information, the SOC RIA.
Benefits. code, and area of intended employment on the electronic
registration form would allow USCIS to further improve
the integrity of the H-1B cap selection processes.
--By engaging in a wage-level-based weighting of
registrations for unique beneficiaries, DHS would better
ensure that initial H-1B visas and status grants would
more likely go to the higher skilled or higher paid
beneficiaries. Facilitating the admission of higher--
skilled workers ``would benefit the economy and increase
the United States' competitive edge in attracting the
`best and the brightest' in the global labor market,''
consistent with the goals of the H-1B program.
--The increased wages would also provide an increase in
payroll taxes paid to the state and federal government.
----------------------------------------------------------------------------------------------------------------
COSTS
----------------------------------------------------------------------------------------------------------------
Annualized monetized costs at 3% $30 RIA.
---------------------------------------------------------------------------------------------
Annualized monetized costs at 7% $30
----------------------------------------------------------------------------------------------------------------
Annualized quantified, but N/A RIA.
unmonetized, costs.
----------------------------------------------------------------------------------------------------------------
Qualitative (unquantified) costs --DHS estimates that the proposed rule could lead to an RIA.
increase in the number of denials or revocations of H-1B
petitions.
----------------------------------------------------------------------------------------------------------------
TRANSFERS
----------------------------------------------------------------------------------------------------------------
Annualized monetized transfers $2,859 RIA.
at 3%.
----------------------------------------------------------------------------------------------------------------
Annualized monetized transfers $2,778 RIA.
at 7%.
----------------------------------------------------------------------------------------------------------------
[[Page 45999]]
From/To......................... From wage level I H-1B workers and petitioners to wage RIA.
level II, III, and IV H-1B workers and petitioners.
----------------------------------------------------------------------------------------------------------------
Annualized unquantified N/A RIA.
monetized transfers.
----------------------------------------------------------------------------------------------------------------
Qualitative (unquantified) There would be an unquantifiable transfer from the RIA.
transfers. petitioners who would hire wage level I H-1B workers to
the petitioners who would hire workers at higher wage
levels in terms of producer surplus. This transfer would
be a cost in terms of lost producer surplus to the
petitioners who registered at wage level I and were not
selected due to the proposed changes. This transfer would
be an unquantifiable benefit in terms of gained producer
surplus to the petitioners who registered at higher wage
levels and got their H-1B registrations selected due to
the higher probability of getting selected.
----------------------------------------------------------------------------------------------------------------
From/To......................... From wage level I H-1B petitioners to wage level II, III, RIA.
and IV H-1B petitioners.
----------------------------------------------------------------------------------------------------------------
Effects on State, local, or N/A RIA.
tribal governments.
----------------------------------------------------------------------------------------------------------------
Effects on small businesses..... DHS estimates that the proposed rule would result in a Regulatory
significant economic impact on 5,193 small entities (30 Flexibility Act
percent of small entities that filed a cap-subject (RFA) analysis.
petition in FY 2024) due to loss of labor.
----------------------------------------------------------------------------------------------------------------
Effects on wages................ N/A RIA.
----------------------------------------------------------------------------------------------------------------
Effects on growth............... N/A RIA.
----------------------------------------------------------------------------------------------------------------
* Note that costs are measured in FY 2023 dollars using U.S. Bureau of Labor Statistics (BLS) wages, but
benefits and transfers are measured in average of FY 2023 and FY 2024 dollars using filed LCA wages.
Background and Population
The H-1B nonimmigrant visa program allows U.S. employers to
temporarily hire foreign workers to perform services in a specialty
occupation, services related to a DOD cooperative research and
development project or coproduction project, or services of
distinguished merit and ability in the field of fashion modeling.\50\ A
specialty occupation is defined as an occupation that requires the (1)
theoretical and practical application of a body of highly specialized
knowledge and (2) attainment of a bachelor's or higher degree in the
specific specialty (or its equivalent) as a minimum qualification for
entry into the occupation in the United States.\51\
---------------------------------------------------------------------------
\50\ See INA sec. 101(a)(15)(H)(i)(b), 8 U.S.C.
1101(a)(15)(H)(i)(b); Immigration Act of 1990, Public Law 101-649,
sec. 222(a)(2), 104 Stat. 4978 (Nov. 29, 1990); 8 CFR 214.2(h).
\51\ See INA sec. 214(i)(l), 8 U.S.C. 1184(i)(l).
---------------------------------------------------------------------------
The number of aliens who may be issued initial H-1B visas or
otherwise provided initial H-1B nonimmigrant status during any fiscal
year has been capped at various levels by Congress over time, with the
current numerical limit being 65,000 per fiscal year.\52\ Congress has
also provided for various exemptions from this annual numerical limit,
including an exemption for 20,000 aliens who have earned a master's or
higher degree from a U.S. institution of higher education.\53\
---------------------------------------------------------------------------
\52\ See INA sec. 214(g)(1)(A), 8 U.S.C. 1184(g)(1)(A).
\53\ See INA sec. 214(g)(5) and (7), 8 U.S.C. 1184(g)(5) and
(7). See more detailed information on cap exemptions in Footnote 4.
---------------------------------------------------------------------------
Under the current regulation, all petitioners seeking to file an H-
1B cap-subject petition must first electronically submit a registration
for each beneficiary on whose behalf they seek to file an H-1B cap-
subject petition, unless USCIS suspends the registration
requirement.\54\ USCIS monitors the number of H-1B registrations for
unique beneficiaries properly submitted during the announced
registration period of at least 14 days. At the conclusion of that
period, if more registrations for unique beneficiaries are submitted
than projected as needed to reach the numerical allocations, USCIS
randomly selects from among unique beneficiaries for whom registrations
were properly submitted, the number of unique beneficiaries projected
as needed to reach the H-1B numerical allocations.\55\ Under this
random H-1B registration selection process, USCIS first selects from a
pool of all unique beneficiaries, including those eligible for the
advanced degree exemption. USCIS then selects from the remaining unique
beneficiaries a sufficient number projected as needed to reach the
advanced degree exemption. A prospective petitioner that properly
registered for a beneficiary who is selected is notified of the
selection and instructed that the petitioner is eligible to file an H-
1B cap-subject petition for the beneficiary named in the selected
registration within a filing period that is at least 90 days in
duration.\56\ When registration is required, a petitioner seeking to
file an H-1B cap-subject petition is not eligible to file the petition
unless the petition is based on a valid, selected registration for the
beneficiary named in the petition.\57\
---------------------------------------------------------------------------
\54\ See 8 CFR 214.2(h)(8)(iii)(A).
\55\ See 8 CFR 214.2(h)(8)(iii)(A)(5) and (6).
\56\ See 8 CFR 214.2(h)(8)(iii)(D)(3).
\57\ See 8 CFR 214.2(h)(8)(iii)(A)(1).
---------------------------------------------------------------------------
In general, prior to filing an H-1B petition, the employer is
required to obtain a certified LCA from the DOL.\58\ The LCA collects
information about the employer and the occupation for the H-1B
worker(s). The LCA requires certain attestations from the employer,
including, among others, that the employer will pay the H-1B worker(s)
at least the required wage.\59\
---------------------------------------------------------------------------
\58\ See 8 CFR 214.2(h)(4)(i)(B).
\59\ See 20 CFR 655.731 through 655.735.
---------------------------------------------------------------------------
This proposed rule would amend DHS regulations concerning the
selection of electronic registrations submitted by or on behalf of
prospective petitioners seeking to file H-1B cap-subject petitions (or
the selection of petitions, if the registration process is suspended),
which includes petitions subject to the regular cap and those asserting
eligibility for the advanced degree exemption, to allow for
[[Page 46000]]
weighting and selection generally based on OEWS wage levels for
simultaneously submitted registrations (including registrations
submitted within the same window of time). When applicable, USCIS would
weight and select the registrations for unique beneficiaries (or
petitions) received generally based on the highest OEWS wage level that
the beneficiary's proffered wage would equal or exceed for the relevant
SOC code and in the area(s) of intended employment. Although the
allocation of regular cap (65,000) slots and advanced degree exemption
(20,000) slots are approximately 75 percent and 25 percent
respectively, the multiple-stage random selection process results in an
increased probability that H-1B beneficiaries with a qualifying
master's degree or higher will be selected.
Table 3 shows the number of registrations received for
beneficiaries without a qualifying master's degree (Non-master's), and
with a qualifying master's degree or above (Master's or higher) for FY
2020 through FY 2024.\60\ Table 3 includes the number of unique
beneficiaries because DHS implemented a beneficiary-centric selection
process for H-1B registrations in FY 2024, which is when USCIS started
selecting registrations by unique beneficiary instead of selecting by
registration. 89 FR 7456 (Feb. 2, 2024). Based on a 5-year annual
average, DHS estimates the annual average receipts of registrations to
be 465,523. The 5-year annual average of registrations received for
non-master's is 299,935, the 5-year annual average of registrations
received for master's or higher is 165,587, and the 5-year annual
average of number of unique beneficiaries with eligible registrations
is 320,711.
---------------------------------------------------------------------------
\60\ The terms ``Non-master's'' and ``Master's or higher'' used
in this analysis refer to the beneficiary's degree type, not which
cap type they were selected under.
Table 3--Form I-129, H-1B Registrations for FY 2020 Through FY 2024
----------------------------------------------------------------------------------------------------------------
Number of Number of unique
registrations (non- Master's beneficiaries--with
Fiscal year master's + master's Non-master's or higher eligible
or higher) registrations
----------------------------------------------------------------------------------------------------------------
2020.................................... 274,237 148,142 126,095 118,026
2021.................................... 308,613 161,820 146,793 235,435
2022.................................... 483,927 334,360 149,567 356,633
2023.................................... 780,884 529,530 251,354 450,354
2024.................................... 479,953 325,825 154,128 443,108
-----------------------------------------------------------------------
5-Year Total........................ 2,327,614 1,499,677 827,937 1,603,556
-----------------------------------------------------------------------
5-Year Average...................... 465,523 299,935 165,587 320,711
----------------------------------------------------------------------------------------------------------------
Source: USCIS OPQ, Benefits Hub, queried 3/2025, TRK #17347.
Registrations submitted in each fiscal year are for the beneficiaries to begin work as an H-1B nonimmigrant the
following fiscal year. Cap-subject petitions filed in each fiscal year are generally for the beneficiaries to
begin work as H-1B nonimmigrants the following fiscal year.
Table 4 shows the number of H-1B cap-subject petitions (Form I-129,
Petition for Nonimmigrant Worker) received for non-master's and
master's or higher as well as historical Form G-28 filings by attorneys
or accredited representatives accompanying H-1B cap-subject petitions
for FY 2020 through FY 2024. DHS notes that these forms are not
mutually exclusive. Based on the 5-year average, DHS estimates 80
percent of H-1B cap-subject petitions would be filed with Form G-
28.\61\ Although the advanced degree exemption cap is 20,000, there are
more petitions for beneficiaries with master's or higher degrees than
20,000 because some beneficiaries with master's or higher degrees are
selected during the regular cap selection process.\62\
---------------------------------------------------------------------------
\61\ Calculation: 75,633 5-Year Average Forms G-28 / 94,900 5-
Year Average Form I-129 petitions = 80 percent.
\62\ See 8 CFR 214.2(h)(8)(iii)(A)(5).
Table 4--H-1B Cap-Subject Petitions Received for FY 2020 Through FY 2024
----------------------------------------------------------------------------------------------------------------
H-1B cap-subject
petitions received Master's Number of
Fiscal year (non-master's + Non-master's or higher petitions filed
master's or higher) with form G-28
----------------------------------------------------------------------------------------------------------------
2020........................................ 100,498 40,740 59,758 82,099
2021........................................ 90,104 40,641 49,463 72,636
2022........................................ 94,702 51,046 43,656 74,373
2023........................................ 92,830 50,533 42,297 73,751
2024........................................ 96,367 48,933 47,434 75,306
-------------------------------------------------------------------
5-Year Total............................ 474,501 231,893 242,608 378,165
-------------------------------------------------------------------
5-Year Average.......................... 94,900 46,379 48,522 75,633
----------------------------------------------------------------------------------------------------------------
Source: USCIS OPQ, CLAIMS3 and ELIS, queried 3/2025, TRK #17265. Form G-28 data from USCIS OPS, PRD, CLAIMS3 and
ELIS, queried 3/2025.
[[Page 46001]]
In this analysis, DHS uses historical data of both registrations
and received petitions to estimate the future registration and petition
population. Specifically, DHS uses 5-year averages to estimate the
number of registrations and H-1B cap-subject petitions received
annually.
Costs, Transfers, and Benefits of the Proposed Rule
Required Information on the Registration
For purposes of the weighting and selection process proposed in
this rulemaking, a registrant would be required to select the box for
the highest OEWS wage level (``wage level IV,'' ``wage level III,''
``wage level II,'' or ``wage level I'') that the beneficiary's
proffered wage generally equals or exceeds for the relevant SOC code in
the area(s) of intended employment. See proposed 8 CFR
214.2(h)(8)(iii)(A)(4)(i). The registrant would also be required to
provide the appropriate SOC code of the proffered position and the area
of intended employment that served as the basis for the OEWS wage level
indicated on the registration, in addition to any other information
required on the electronic registration form (and on the H-1B petition)
as specified in the registration form instructions.
For registrants relying on a prevailing wage that is not based on
the OEWS survey, if the proffered wage were less than the corresponding
level I OEWS wage, the registrant would select the ``wage level I'' box
on the registration form. See proposed 8 CFR 214.2(h)(8)(iii)(A)(4)(i).
If the proffered wage is expressed as a range, the registrant would
select the OEWS wage level that the lowest wage in the range will equal
or exceed. If the H-1B beneficiary would work in multiple locations, or
in multiple positions if the registrant is an agent, the registrant
would select the box for the lowest equivalent wage level among the
corresponding wage levels for each of those locations or each of those
positions and would list the location corresponding to that lowest
equivalent wage level as the area of intended employment.\63\ The
proposal to require a registrant to select the lowest among the
corresponding wage levels if a beneficiary would work in multiple
locations, or in multiple positions if the registrant is an agent, is
meant to prevent gaming of the weighted selection process.\64\
---------------------------------------------------------------------------
\63\ Providing the area of intended employment that corresponds
to the lowest equivalent wage level at registration would not
preclude the registrant, if selected and eligible to file a
petition, from listing any additional concurrent work location(s) on
the petition.
\64\ For instance, in the case of multiple positions, if DHS
were to instead require registrants to select the box for the
highest corresponding OEWS wage level that the proffered wage were
to equal or exceed, then a petitioner could place the beneficiary in
a lower paying position for most of the time and a higher paying
position for only a small percent of the time, but use that higher
paying position to increase their chances of being selected in the
registration process. Similarly, in the case of multiple locations,
a petitioner could place the beneficiary in a higher paying locality
for only a small percent of time but use that higher paying locality
to increase their chances of being selected in the registration
process.
---------------------------------------------------------------------------
DHS recognizes that some occupations do not have current OEWS
prevailing wage information available on DOL's OFLC Wage Search
website.\65\ In the limited instance where there is no current OEWS
prevailing wage information for the proffered position, such that there
are not four wage levels for the occupational classification or there
are not wage data for the area of intended employment, the registrant
would follow DOL guidance on PWDs to determine which OEWS wage level to
select on the registration.\66\ DHS expects each registrant would be
able to identify the appropriate SOC code for the proffered position
because all petitioners are required to identify the appropriate SOC
code for the proffered position on the LCA, even when there are no
applicable wage level data available or the OEWS survey is not used as
the prevailing wage source on the LCA. Using the SOC code and the
previously mentioned DOL guidance, all registrants would be able to
determine the appropriate OEWS wage level for purposes of completing
the registration, regardless of whether they were to specify an OEWS
wage level or utilize the OEWS program as the prevailing wage source on
an LCA.
---------------------------------------------------------------------------
\65\ OFLC, a component of DOL, administers the OFLC Wage Search
for OEWS prevailing wage information at <a href="https://flag.dol.gov/wage-data/wage-search">https://flag.dol.gov/wage-data/wage-search</a> (last visited Apr. 11, 2025).
\66\ DOL, ETA, ``Prevailing Wage Determination Policy Guidance:
Nonagricultural Immigration Programs'' (revised Nov. 2009), <a href="https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/NPWHC_Guidance_Revised_11_2009.pdf">https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/NPWHC_Guidance_Revised_11_2009.pdf</a>.
---------------------------------------------------------------------------
This proposed change would add additional requirements for
registrants. DHS estimates that this change would increase the time
burden by 20 minutes for each registration (0.3333 hours) from 36
minutes (0.6 hours) to 56 minutes (0.9333 hours). The proposed change
would offer qualitative benefits. Specifically, submission of
additional wage level information and the SOC code on both an
electronic registration and on Form I-129 would result in the benefit
of allowing USCIS to further improve the integrity of the H-1B cap
selection and adjudication processes.
Table 5 shows the number of total registrations and estimated total
registrations with Form G-28 attached. Based on a 5-year annual
average, DHS estimates the annual average registrations are 465,523.
The estimated 5-year annual average of registrations with Form G-28
attached is 180,970.
Table 5--Form I-129, H-1B Registrations and Attached Form G-28 for FY 2020 Through FY 2024
--------------------------------------------------------------------------------------------------------------------------------------------------------
Percentage of
Total Total eligible Eligible eligible Estimated total
Fiscal year registrations registrations registrations registrations registrations with
with Form G-28 with Form G-28 Form G-28 *
(A) (B) (C) (B/C) (A x B/C)
--------------------------------------------------------------------------------------------------------------------------------------------------------
2020........................................................ 274,237 269,424 74,356 28 75,684
2021........................................................ 308,613 301,447 147,350 49 150,853
2022........................................................ 483,927 474,421 205,335 43 209,449
2023........................................................ 780,884 758,994 249,579 33 256,777
2024........................................................ 479,953 470,342 207,634 44 211,877
-------------------------------------------------------------------------------------------
5-Year Total............................................ 2,327,614 2,274,628 884,254 39 904,852
-------------------------------------------------------------------------------------------
5-Year Average.......................................... 465,523 454,926 176,851 39 180,970
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: USCIS OPQ, Benefits Hub, queried 3/2025, TRK #17518.
[[Page 46002]]
* Estimated Total Registrations with Form G-28 is estimated using the Percentage of Eligible Registrations with Form G-28 and Total Registrations.
DHS estimates the opportunity cost of time of gathering and
preparing information by multiplying the estimated increased time
burden for those submitting an H-1B registration by the compensation
rate of a human resources (HR) specialist, in-house lawyer, or
outsourced lawyer, respectively.
In order to estimate the opportunity cost of time for completing
and submitting an H-1B registration, DHS assumes that a prospective
petitioner would use an HR specialist, an in-house lawyer, or an
outsourced lawyer to prepare an H-1B registration.\67\ DHS uses the
mean hourly wage of $36.57 for HR specialists to estimate the
opportunity cost of the time for preparing and submitting an H-1B
registration.\68\ Additionally, DHS uses the mean hourly wage of $84.84
for in-house lawyers to estimate the opportunity cost of the time for
preparing and submitting an H-1B registration.\69\
---------------------------------------------------------------------------
\67\ DHS limited its analysis to HR specialists, in-house
lawyers, and outsourced lawyers to present estimated costs. However,
DHS understands that not all entities employ individuals with these
occupations and, therefore, recognizes equivalent occupations may
also prepare and submit these registrations.
\68\ See BLS, ``Occupational Employment and Wage Statistics,
Occupational Employment and Wages, May 2023, 13-1071 Human Resources
Specialists,'' <a href="https://www.bls.gov/oes/2023/may/oes131071.htm">https://www.bls.gov/oes/2023/may/oes131071.htm</a> (last
updated Apr. 3, 2024).
\69\ See DOL, BLS, ``Occupational Employment and Wage
Statistics, Occupational Employment and Wages, May 2023, 23-1011
Lawyers,'' <a href="https://www.bls.gov/oes/2023/may/oes231011.htm">https://www.bls.gov/oes/2023/may/oes231011.htm</a> (last
updated Apr. 3, 2024).
---------------------------------------------------------------------------
DHS accounts for worker benefits when estimating the total costs of
compensation by calculating a benefits-to-wage multiplier using the BLS
report detailing the average employer costs for employee compensation
for all civilian workers in major occupational groups and industries.
DHS estimates that the benefits-to-wage multiplier is 1.45 and,
therefore, is able to estimate the full opportunity cost per
registration, including employee wages and salaries and the full cost
of benefits, such as paid leave, insurance, retirement, etc.\70\ DHS
multiplied the average hourly U.S. wage rate for HR specialists and in-
house lawyers by 1.45 to account for the full cost of employee
benefits, for a total of $53.03 per hour for an HR specialist \71\ and
$123.02 per hour for an in-house lawyer.\72\ DHS recognizes that a firm
may choose, but is not required, to outsource the preparation of these
registrations and, therefore, presents two wage rates for lawyers. To
determine the full opportunity costs of time if a firm hired an
outsourced lawyer, DHS multiplied the average hourly U.S. wage rate for
lawyers by 2.5 for a total of $212.10 to approximate an hourly cost for
an outsourced lawyer to prepare and submit an H-1B registration.\73\
---------------------------------------------------------------------------
\70\ The benefits-to-wage multiplier is calculated as follows:
(Total Employee Compensation per hour) / (Wages and Salaries per
hour) = ($45.42 Total Employee Compensation per hour) / ($31.29
Wages and Salaries per hour) = 1.45158 = 1.45 (rounded). See BLS,
Economic News Release, ``Employer Costs for Employee Compensation--
December 2023,'' Table 1. Employer Costs for Employee Compensation
by ownership [Dec. 2023], <a href="https://www.bls.gov/news.release/archives/ecec_03132024.htm">https://www.bls.gov/news.release/archives/ecec_03132024.htm</a> (last updated Mar. 13, 2024). The Employer Costs
for Employee Compensation measures the average cost to employers for
wages and salaries and benefits per employee hour worked.
\71\ Calculation: $36.57 x 1.45 = $53.03 total wage rate for HR
specialist.
\72\ Calculation: $84.84 x 1.45 = $123.02 total wage rate for
in-house lawyer.
\73\ Calculation: $84.84 x 2.5 = $212.10 total wage rate for an
outsourced lawyer.
The DHS analysis in Exercise of Time-Limited Authority to
Increase the Fiscal Year 2018 Numerical Limitation for the H-2B
Temporary Nonagricultural Worker Program, 83 FR 24905 (May 31,
2018), used a multiplier of 2.5 to convert in-house attorney wages
to the cost of outsourced attorney wages.
The U.S. Immigration and Customs Enforcement rule ``Final Small
Entity Impact Analysis: `Safe-Harbor Procedures for Employers Who
Receive a No-Match Letter''' at G-4 (Aug. 25, 2008), <a href="https://www.regulations.gov/document/ICEB-2006-0004-0922">https://www.regulations.gov/document/ICEB-2006-0004-0922</a>, also used a
multiplier of 2.5 to convert in-house attorney wages to the cost of
outsourced attorney based on information received in public comment
to that rule. The methodology used in that analysis remains sound
for using 2.5 as a multiplier for outsourced labor wages in this
rule.
---------------------------------------------------------------------------
DHS does not know the exact number of registrants who will choose
an in-house or an outsourced lawyer but assumes it may be a 50/50 split
and, therefore, provides an average. The estimated number of
registrations with Form G-28 attached is 180,970 from Table 5. Table 6
shows the current total annual average cost for a lawyer to complete
the registration on behalf of a prospective petitioner. The current
opportunity cost of time for submitting an H-1B registration using an
attorney or other representative is estimated to range from $13,357,758
to $23,030,242, with an average of $18,194,000.
Table 6--Current Average Opportunity Costs of Time for Submitting an H-1B Registration With an Attorney or Other
Representative
----------------------------------------------------------------------------------------------------------------
Time burden to
Population complete H-1B Total current
submitting with a registration Cost of time opportunity cost
lawyer (hours)
A B C D = (A x B x C)
----------------------------------------------------------------------------------------------------------------
In-house lawyer..................... 180,970 0.6 $123.02 $13,357,758
Outsourced lawyer................... 180,970 0.6 212.10 23,030,242
---------------------------------------------------------------------------
Average......................... ................. ................. ................. 18,194,000
----------------------------------------------------------------------------------------------------------------
Source: USCIS analysis.
To estimate the current remaining opportunity cost of time for an
HR specialist submitting an H-1B registration without a lawyer, DHS
applies the estimated public reporting time burden (0.6 hours) to the
compensation rate of an HR specialist. Table 7 estimates the current
total annual opportunity cost of time to HR specialists completing and
submitting an H-1B registration would be approximately $9,053,907.
[[Page 46003]]
Table 7--Current Average Opportunity Costs of Time for Submitting an H-1B Registration, Without an Attorney or
Accredited Representative
----------------------------------------------------------------------------------------------------------------
Time burden to
complete H-1b HR specialist's Total opportunity
Population registration opportunity cost cost of time
(hours) of time
A B C D = (A x B x C)
----------------------------------------------------------------------------------------------------------------
Estimate of H-1B Registrations.. 284,553 0.6 $53.03 $9,053,907
----------------------------------------------------------------------------------------------------------------
Source: USCIS analysis. Note that 284,553 = 465,523 (number of total registrations)-180,970 (number of
registrations filed by lawyers) from Table 5.
Table 8 shows the final estimated time burden would increase by 20
minutes (0.3333 hours) to 56 minutes (0.9333 hours) to the eligible
population and compensation rates of those who may submit registrations
with or without a lawyer due to changes in the instructions, adding
clarifying language regarding denying or revoking approved H-1B
petitions, adding passport or travel document instructional language,
and providing the corresponding wage level, the appropriate SOC code of
the proffered position, and the area of intended employment that served
as the basis for the OEWS wage level indicated on the registration. DHS
does not know the exact number of registrants who would choose an in-
house or an outsourced lawyer but assumes it may be a 50/50 split and
therefore provides an average. DHS estimates that these current
opportunity costs of time for submitting an H-1B registration using an
attorney or other representative would range from $20,777,992 to
$35,823,542, with an average of $28,300,767.
Table 8--New Opportunity Costs of Time for an H-1B Registration, Registrants Submitting With an Attorney or
Other Representative
----------------------------------------------------------------------------------------------------------------
Population of Time burden to
registrants complete H-1B Total opportunity
submitting with a registration Cost of time cost
lawyer (hours)
A B C D = (A x B x C)
----------------------------------------------------------------------------------------------------------------
In House Lawyer..................... 180,970 0.9333 $123.02 $20,777,992
Outsourced Lawyer................... 180,970 0.9333 212.10 35,823,542
---------------------------------------------------------------------------
Average......................... ................. ................. ................. 28,300,767
----------------------------------------------------------------------------------------------------------------
Source: USCIS analysis.
To estimate the current remaining opportunity cost of time for an
HR specialist submitting an H-1B registration without a lawyer, DHS
applies the final estimated public reporting time burden (0.9333 hours)
to the compensation rate of an HR specialist. Table 9 estimates the
current total annual opportunity cost of time to HR specialists
completing and submitting the H-1B registration would be approximately
$14,083,353.
Table 9--Final Average Opportunity Costs of Time for an H-1B Registration, Submitting Without an Attorney or
Accredited Representative
----------------------------------------------------------------------------------------------------------------
Time burden to HR specialist's
complete H-1B opportunity cost Total opportunity
Population registration of time ($48.40/ cost of time
(hours) hr.)
A B C D = (A x B x C)
----------------------------------------------------------------------------------------------------------------
Estimate H-1B Registration...... 284,553 0.9333 $53.03 $14,083,353
----------------------------------------------------------------------------------------------------------------
Source: USCIS analysis.
DHS estimates the total additional annual cost for attorneys and HR
specialists to complete and submit H-1B registrations would be
approximately $15,136,213 as shown in Table 10. This table shows the
current total opportunity cost of time to submit an H-1B registration
and the final total opportunity cost of time.
Table 10--Total Costs to Complete the H-1B Registration
------------------------------------------------------------------------
------------------------------------------------------------------------
Average Current Opportunity Cost Time for Lawyers to $18,194,000
Complete the H-1B Registration.........................
Average Current Opportunity Cost Time for HR Specialist 9,053,907
to Complete the H-1B Registration......................
---------------
Total (A)........................................... 27,247,907
[[Page 46004]]
Average Final Opportunity Cost Time for Lawyers to 28,300,767
Complete the H-1B Registration.........................
Average Final Opportunity Cost Time for HR Specialist to 14,083,353
Complete the H-1B Registration.........................
---------------
Total (B)........................................... 42,384,120
---------------
Final Additional Opportunity Costs of Time to 15,136,213
Complete the H-1B Registration (Total (B) minus
Total (A)).....................................
------------------------------------------------------------------------
Source: USCIS analysis.
Weighting and Selecting Registrations
In the current selection process for H-1B registrations, USCIS
randomly selects from among properly submitted registrations the number
of unique beneficiaries projected as needed to reach the H-1B numerical
allocations. This proposed rule would change the way USCIS selects
unique beneficiaries, and the registrations submitted on their behalf
for H-1B cap-subject petitions (or petitions, if the registration
process is suspended), including those eligible for the advanced degree
exemption. As proposed, USCIS would weight and select the registrations
for unique beneficiaries (or petitions) received generally on the basis
of the highest OEWS wage level that the beneficiary's proffered wage
would equal or exceed for the relevant SOC code in the area(s) of
intended employment. The proposed changes to weight and select
registrations would result in the benefit of increasing the chance that
registrations or petitions, as applicable, would be selected for higher
paid, and presumably higher skilled or higher-valued, beneficiaries.
Congress has established the limits on certain initial H-1B
nonimmigrant visas or status grants each fiscal year not to exceed
65,000 (regular cap) with an annual exemption for those who have earned
a qualifying U.S. master's degree or higher from a U.S. institution of
higher education not to exceed 20,000 (advanced degree exemption).
USCIS monitors the number of H-1B registrations for unique
beneficiaries it receives during the announced registration period. At
the conclusion of the registration period, USCIS randomly selects from
among properly submitted registrations a number of registrations for
unique beneficiaries projected as needed to reach the H-1B numerical
allocations. Although the allocation of regular cap (65,000) and
advanced degree exemption (20,000) are approximately 75 percent and 25
percent respectively, the multiple-stage random selection process
results in an increased probability that H-1B beneficiaries with a
master's degree or higher will be selected. Table 11 shows the
historical numbers of H-1B cap-subject petitions received by wage level
and by the beneficiary's degree type for FY 2020 through FY 2024. Based
on the 5-year annual average, DHS estimates the annual average receipts
of H-1B cap-subject petitions are 94,900 per year. The 5-year annual
average of non-master's degree receipts is 46,379, and the 5-year
annual average of master's or higher degree receipts is 48,522.
Table 11--Form I-129, H-1B Cap-Subject Petition Received by Wage Level for FY 2020 Through FY 2024
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fiscal year Level I Level II Level III Level IV N/A * All levels
--------------------------------------------------------------------------------------------------------------------------------------------------------
2020.......................................... ................................ 26,152 53,665 10,854 4,531 5,296 100,498
Non-master's.................... 6,962 23,380 5,530 2,881 1,987 40,740
Master's or higher.............. 19,190 30,285 5,324 1,650 3,309 59,758
2021.......................................... ................................ 21,990 49,130 10,515 4,353 4,116 90,104
Non-master's.................... 6,475 24,023 5,663 2,810 1,670 40,641
Master's or higher.............. 15,515 25,107 4,852 1,543 2,446 49,463
2022.......................................... ................................ 22,361 54,020 11,143 4,502 2,676 94,702
Non-master's.................... 8,570 32,628 6,140 2,683 1,025 51,046
Master's or higher.............. 13,791 21,392 5,003 1,819 1,651 43,656
2023.......................................... ................................ 26,107 48,656 10,416 4,205 3,446 92,830
Non-master's.................... 11,082 30,060 5,675 2,430 1,286 50,533
Master's or higher.............. 15,025 18,596 4,741 1,775 2,160 42,297
2024.......................................... ................................ 29,435 43,558 10,370 4,431 8,573 96,367
Non-master's.................... 11,111 24,782 5,897 2,734 4,409 48,933
Master's or higher.............. 18,324 18,776 4,473 1,697 4,164 47,434
5-Year Total.............................. ................................ 126,045 249,029 53,298 22,022 24,107 474,501
Non-master's.................... 44,200 134,873 28,905 13,538 10,377 231,893
Master's or higher.............. 81,845 114,156 24,393 8,484 13,730 242,608
5-Year Average............................ ................................ 25,209 49,806 10,660 4,404 4,821 94,900
Non-master's.................... 8,840 26,975 5,781 2,708 2,075 46,379
Master's or higher.............. 16,369 22,831 4,879 1,697 2,746 48,522
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: USCIS OPQ, CLAIMS3 and ELIS, queried 3/2025, TRK #17265. LCA data from DOL. Disclosure Files for LCA Programs (H-1B, H-1B1, E-3), FY 2018-FY
2024. DOL data downloaded from <a href="https://www.dol.gov/agencies/eta/foreign-labor/performance">https://www.dol.gov/agencies/eta/foreign-labor/performance</a>.
* N/A: Approximately 5 percent of H-1B cap-subject receipts have wage levels not available. Most N/As use an independent survey or other survey sources
to determine the prevailing wage rather than using the OFLC online data center provided by DOL.
Table 12 presents the percentage of H-1B cap-subject receipts by
wage levels for the estimated 94,900 average annual receipts, based on
corresponding 5-year averages for FY 2020 through FY 2024. For both
non-master's degree and master's or higher degree, wage level II has
the most H-1B receipts followed, in order, by level I, level III, and
level IV. Master's or higher degree petitions have slightly more
receipts in level I and level II as shown by the cumulative percentage
of 86 percent compared to the non-master's degree petitions' cumulative
percentage of 81 percent. Currently, wage level data are only collected
for those beneficiaries who were selected in the registration
[[Page 46005]]
selection process and on whose behalf a Form I-129 for H-1B petition
was filed because H-1B petitioners must obtain a certified LCA from DOL
that includes the applicable wage level. An LCA is not a requirement
for registration. Therefore, DHS does not have information on the
number of registrations for each wage level. DHS assumes that the H-1B
cap-subject petition receipts percentages by wage levels from LCA data
are predictive of the H-1B registrations percentages by wage levels.
However, to the extent that proffered wages may exceed the wage levels
indicated on the LCA, the projections in this discussion would
represent the upper bound of the impact of the proposed rule. DHS does
not have a way to estimate how many registrants would select a higher
wage level than required on the LCA, DHS uses LCA wage data as a
reasonable proxy for registration wage data.
DHS uses the percentages of H-1B cap-subject petition receipts by
wage level to estimate the distribution of registrations for
beneficiaries by wage level. Table 12 shows that the distribution of
current H-1B cap-subject petition receipts, 94,900, by wage level is 28
percent, 55 percent, 12 percent, and 5 percent for wage levels I, II,
III, and IV, respectively. DHS uses the 5-year average of the number of
unique beneficiaries with eligible registrations, 320,711 from Table 3
and applies the distribution of current H-1B cap-subject petition
receipts to estimate the number of unique beneficiaries with eligible
registrations by wage level shown in Table 12.
Table 12--Percentage of H-1B Cap-Subject Receipts and Estimated Number of Beneficiaries With Eligible
Registrations by Wage Level for 5-Year Average for FY 2020 Through FY 2024
----------------------------------------------------------------------------------------------------------------
5-Year average Level I Level II Level III Level IV Total
----------------------------------------------------------------------------------------------------------------
Non-master's........................................ 9,254 28,238 6,052 2,834 46,379
Total %......................................... 20% 61% 13% 6% ..........
Cumulative %.................................... 20% 81% 94% 100% ..........
Master's or higher.................................. 17,351 24,201 5,171 1,799 48,522
Total %......................................... 36% 50% 11% 4% ..........
Cumulative %.................................... 36% 86% 96% 100% ..........
-----------------------------------------------------------
Cap-Subject Total........................... 26,605 52,439 11,223 4,633 94,900
28% 55% 12% 5% 100%
Estimated Number of Beneficiaries with Eligible 89,911 177,216 37,928 15,657 320,711
Registration by Wage Level.........................
----------------------------------------------------------------------------------------------------------------
Source: USCIS analysis. N/A counts in H-1B cap-subject receipts by wage level were redistributed among wage
levels using the percent of total. For example, for wage level II, 28,238 is 26,975, the 5-year average of non-
master's for level II from Table 11, plus 1,264, which is 61 percent of the total N/A count, 2,075. The 5-year
annual average of number of beneficiaries with eligible registrations, 320,711, is from Table 3. The estimated
number of beneficiaries with eligible registrations by wage level is estimated using percentages by wage level
(level I, 28%; level II, 55%; level III, 12%; and level IV, 5%) of the 5-year average of the number of
beneficiaries with eligible registrations, 320,711.
The proposed rule would change the way USCIS selects registrations
for H-1B cap-subject petitions (or petitions, if the registration
process is suspended), including those eligible for the advanced degree
exemption. When random selection is required, USCIS would weight and
select unique beneficiaries with properly submitted registrations
generally based on the highest OEWS wage level that the beneficiary's
proffered wage would equal or exceed for the relevant SOC code in the
area(s) of intended employment. A registrant would be required to
select the box for the highest OEWS wage level (``wage level IV,''
``wage level III,'' ``wage level II,'' or ``wage level I'') that the
proffered wage generally equals or exceeds for the relevant SOC code in
the area of intended employment or otherwise select the appropriate box
according to the form instructions. Registrations for unique
beneficiaries or petitions would be assigned to the relevant OEWS wage
level and entered into the selection pool as follows: registrations for
unique beneficiaries or petitions assigned wage level IV would be
entered into the selection pool four times, those assigned wage level
III would be entered into the selection pool three times, those
assigned wage level II would be entered into the selection pool two
times, and those assigned wage level I would be entered into the
selection pool one time. Each unique beneficiary would only be counted
once toward the numerical allocation projections, regardless of how
many registrations were submitted for that beneficiary or how many
times the beneficiary is entered in the selection pool. If a
beneficiary has multiple registrations, the unique beneficiary would be
allotted to the lowest wage level of all registrations submitted on his
or her behalf. The proposed regulatory revisions would increase the
odds of being selected to file H-1B cap-subject petitions for
beneficiaries with proffered wages that correspond to the higher wage
levels. DHS examines the impacts of the proposed change in three
different dimensions: probability of being selected, estimated number
of unique beneficiaries selected by wage levels, and economic impact of
the proposed change.
Under the current H-1B selection process, if more registrations for
unique beneficiaries are submitted than projected as needed to reach
the numerical allocations, USCIS randomly selects from among unique
beneficiaries for whom registrations were properly submitted, the
number of unique beneficiaries projected as needed to reach the H-1B
numerical allocations.\74\ Under this random H-1B registration
selection process, USCIS first selects from a pool of all unique
beneficiaries, including those eligible for the advanced degree
exemption.\75\ USCIS then selects from the remaining unique
beneficiaries a sufficient number projected as needed to reach the
advanced degree exemption.\76\ This process allows beneficiaries who
have earned a qualifying U.S. master's degree or higher a greater
chance to be selected. The proposed rule would maintain this two-stage
selection process to keep a higher chance of beneficiaries with a
qualifying U.S. master's degree or higher of being selected. However,
for the simplicity of comparing the probabilities of being selected in
the current random selection process and in the proposed weighted
selection process, DHS combines the pool of beneficiaries for the
regular cap and the advanced degree exemption and presents the
probabilities of being
[[Page 46006]]
selected at different wage levels in this analysis.
---------------------------------------------------------------------------
\74\ 8 CFR 214.2(h)(8)(iii)(A)(5)-(6).
\75\ Id.
\76\ Id.
---------------------------------------------------------------------------
Table 13 compares the probabilities of being selected and
corresponding estimated petition receipts by wage level for the current
random selection process and proposed weighted selection process. Under
the current random selection process in which every unique beneficiary
has an equal chance of being selected, the probability of being
selected to file an H-1B cap-subject petition for a unique beneficiary
is 29.59 percent across all the wage levels. Under the proposed
weighted selection, DHS estimates that the probability of being
selected to file a H-1B cap-subject petition for a unique beneficiary
would be 15.29 percent for level I, 30.58 percent for level II, 45.87
percent for level III, and 61.16 percent for level IV.\77\ The
estimated petition receipts for the current selection process and
proposed selection process are shown in Table 13. DHS estimates that
the percentage change in probability of being selected to file an H-1B
cap-subject petition from the current to the proposed process would
decrease by 48 percent for level I and would increase by 3 percent, 55
percent, and 107 percent for level II, level III, and level IV,
respectively. DHS projects, based on the proposed selection process,
that the probability of being selected to file an H-1B cap-subject
petition would be allocated more to levels II, III, and IV, and less to
level I.
---------------------------------------------------------------------------
\77\ Under the proposed rule, calculating weighted probability
is complex due to the involvement of conditional probabilities and
distributional assumptions. For this analysis, DHS uses simple
weighted probabilities to approximate the expected distribution of
each wage level in the sample (see Table 13), comparing
probabilities of being selected. The new weighted probability
distribution assumes that companies will keep their current wage
rates when submitting registrations or petitions. As a result, the
analysis may underestimate the number of registrations or petitions
for higher-wage positions selected in the future if companies offer
higher wages to improve their chance of selection.
Table 13--Probability of Being Selected and Estimated H-1B Cap-Subject Petition Receipts by Wage Level
----------------------------------------------------------------------------------------------------------------
Level I Level II Level III Level IV Total
----------------------------------------------------------------------------------------------------------------
(A) Estimated Number of Beneficiaries with Eligible 89,911 177,216 37,928 15,657 320,711
Registration by Wage Level.........................
(B) Probability of Being Selected to File H-1B Cap- 29.59% 29.59% 29.59% 29.59% ..........
Subject Petitions under Current Random Selection by
Wage Level.........................................
(C) Estimated Petition Receipts (Random Selection).. 26,605 52,439 11,223 4,633 94,900
(D) Probability of Being Selected to File H-1B Cap- 15.29% 30.58% 45.87% 61.16% ..........
Subject Petitions under New Weighted Selection by
Wage Level.........................................
(E) Percentage Change in Probability of Being -48% 3% 55% 107% ..........
Selected to File H-1B Cap-Subject Petitions from
Current to Proposed Selection System...............
(F) Estimated Petition Receipts (Weighted Selection) 15,330 55,089 16,243 8,239 94,900
----------------------------------------------------------------------------------------------------------------
Source: (A) USCIS analysis.
(B) The probability of being selected under random selection is 29.59% = (94,900 / 320,711) x 100% regardless of
different wage levels.
(C) = (A) x (B).
(D) The probability of being selected under weighted selection for level I is 15.29% = (94,900 / (89,911 x 1 +
177,216 x 2 + 37,928 x 3 + 15,657 x 4)) x 100%. Level II, 30.58% = (probability of being selected for level I,
15.29%) x 2. Level III, 45.87% = 15.29% x 3. Level IV, 61.16% = 15.29% x 4.
(E) Percentage Change in Probability for Level I = (15.29-29.59)/29.59 x 100% = -48%; for Level II, III, and IV
follow the same calculation.
(F) To estimate the petition receipts by wage level under the proposed rule, DHS simulated the selection process
with estimated numbers of beneficiaries with eligible registrations by wage level.
Table 14 shows the estimated difference in H-1B cap-subject
petitions by wage level from the current to the proposed selection
process. DHS applies 85,000, which is the statutory limit on the number
of initial H-1B visas, rather than the historical 5-year annual average
of H-1B cap-subject petition receipts, which is 94,900,\78\ because
only approximately 85,000 beneficiaries would be granted initial H-1B
status and paid the applicable required H-1B wage. The estimated number
of annual H-1B cap-subject visas would decrease by 10,099 for level I
petitions, and would increase by 2,373 for level II petitions, 4,496
for level III petitions, and 3,230 for level IV petitions.
---------------------------------------------------------------------------
\78\ Note that the estimated number of H-1B cap-subject
petitions (94,900) exceeds the number of H-1B visas authorized under
the statutory cap (approximately 85,000, after certain deductions
are made for certain numerical set-asides) to allow for the
possibility that some approved workers would either not seek a visa
or admission, would not be issued a visa, or would not be admitted
to the United States.
Table 14--Estimated Difference in H-1B Cap-Subject Petitions by Wage Level for Current (Random) and New
(Weighted) Selection Process
----------------------------------------------------------------------------------------------------------------
Level I Level II Level III Level IV Total
----------------------------------------------------------------------------------------------------------------
Estimated H-1B Cap-Subject Petition Receipts 26,605 52,439 11,223 4,633 94,900
(Random)...........................................
Estimated H-1B Cap-Subject Petition Receipts 15,330 55,089 16,243 8,239 94,900
(Weighted).........................................
Statutory Limit on the Number of Initial H-1B Visa.. .......... .......... .......... .......... 85,000
Estimated H-1B Cap-Subject Visa Granted (Random) *.. 23,830 46,968 10,052 4,150 85,000
Estimated H-1B Cap-Subject Visa Granted (Weighted) * 13,731 49,342 14,548 7,379 85,000
Difference in Estimated H-1B cap-subject Visa -10,099 2,373 4,496 3,230 0
Granted from Random to Weighted Selection..........
----------------------------------------------------------------------------------------------------------------
* Note that Estimated H-1B Cap-Subject Visa Granted (Random/Weighted) is equal to Estimated H-1B Cap-Subject
Petition Receipts (Random/Weighted) multiplied by 85,000/94,900. This scaling is applied to each wage level.
All LCAs that are required for H-1B petitions specify SOC codes for
the prospective jobs. The top two SOC major group codes, Computer and
Mathematical Occupations (2-digit SOC major group code 15) and
Architecture
[[Page 46007]]
and Engineering Occupations (2-digit SOC major group code 17), make up
81 percent of H-1B cap-subject petitions received in FY 2020-FY 2024.
The top five SOC major group codes make up 96 percent of total
petitions. Figure 1 breaks out the wage levels for these SOC codes. The
H-1B cap-subject petitions by wage level presented in previous tables
show that most of the petitions are at wage level II. As seen in Figure
1, this is driven by Computer and Mathematical Occupations. Petitions
for Computer and Mathematical Occupations are overwhelmingly at wage
level II, whereas petitions for Architecture and Engineering
Occupations are greater at wage level I than wage level II. For the
rest of the top five SOC major group codes, the number of H-1B cap-
subject petitions filed at wage level II is greater than level I, but
not as drastically different as Computer and Mathematical Occupations.
[GRAPHIC] [TIFF OMITTED] TP24SE25.000
Given that the analysis estimates a 48 percent drop in selections
for wage level I beneficiaries, the distribution of wage levels at the
SOC code will determine the effects of the proposed rule for
occupations under that SOC code. DHS examines these effects for the top
two SOC major group codes (15 and 17) by breaking out the distribution
into 6-digit SOC codes. The results are summarized in Figure 2 and
Figure 3.
Of the 470,023 H-1B cap-subject petitions received in FY 2020-FY
2024, 69 percent (326,000) were associated with SOC major group 15
(Computer and Mathematical Occupations). This major occupation group
contains 460 distinct 6-digit SOC codes, each corresponding to a
different detailed occupation. Examples of detailed occupations include
15-1252 (Software Developers) and 15-2051 (Data Scientists). The top
five detailed occupations make up 71 percent of the 326,000 petitions
received under SOC major group 15. Figure 2 details the counts for
these five detailed occupations, separated by whether they were grouped
at wage level I or at one of the higher wage levels (II, III, IV). As
Figure 2 shows, all detailed occupations under SOC major group 15 have
counts of petitions in wage level I and in higher wage levels except
15-2041 (Statistician).
The proposed rule does not project a significant increase in the
selection of higher wage level workers in the 15-2041 (Statistician)
occupation.\79\ SOC code 15-1299 (Computer Occupations, All Other) is
also one of the notable exceptions--there were no petitions with wage
level I in this category. SOC code 15-1299 is used to encompass
detailed occupations that do not have a specific code within the broad
group. The proposed rule would have material effects on these detailed
occupations since registrations under this code would receive a large
boost in probability that they are selected.
---------------------------------------------------------------------------
\79\ However, it is possible that such prospective employers
already pay a wage that corresponds to a higher wage level such that
the chance of selection would not be reduced under the proposed
rule, or that they would choose to pay a wage that corresponds to a
higher wage level in order to increase the chance of selection for
workers in level I positions.
---------------------------------------------------------------------------
[[Page 46008]]
[GRAPHIC] [TIFF OMITTED] TP24SE25.001
After SOC major group code 15, the major group with the next
greatest number of petitioners is SOC major group code 17 (Architecture
and Engineering Occupations). This major group had 52,402 petitions
filed in FY 2020 through FY 2024. Figure 3 details the counts for the
five detailed occupations within SOC major group code 17 that had the
greatest number of petitions in FY 2020 through FY 2024. As for SOC
major group code 17, many of these occupations have petition counts in
wage level I and in higher wage levels. SOC code 17-2051 (Civil
Engineers) and 17-1011 (Architects, Except Landscape and Naval) are
also a notable exception since all the petitions under this code in the
figure were wage level I. The proposed rule would reduce the number of
selected H-1B registrations for Civil Engineers and Architects by up to
48 percent, assuming such registrations would be submitted at wage
level I consistent with historical LCA wage level data for Civil
Engineers.\80\ On the other hand, the proposed rule would likely
increase the number of selected H-1B registrations for SOC code 17-2072
(Electronics Engineers except Computer), SOC code 17-2131 (Materials
Engineers), and 17-2100 (Engineers, All Other) since these detailed
occupations are not expected to contain any wage level I registrations,
assuming such registrations would be submitted at higher wage levels
consistent with historical LCA wage level data for these
occupations.\81\
---------------------------------------------------------------------------
\80\ To the extent that some of these employers may already be
paying a wage, or offering to pay a wage, that corresponds to a
higher wage level, or may choose to do so, DHS recognizes this
projected reduction represents the upper bound of estimated impact.
However, because DHS does not have a way to estimate how many
registrants would pay a proffered wage that corresponds to a higher
wage level than the wage level required on the LCA, DHS uses the
wage level selected on the LCA as a proxy for the wage level that is
likely to be selected on the registration.
\81\ See the previous footnote.
---------------------------------------------------------------------------
[[Page 46009]]
[GRAPHIC] [TIFF OMITTED] TP24SE25.002
Most of the petitions are filed with the same top 6-digit SOC codes
across wage levels, with several exceptions. The proposed rule projects
that almost half of the registrations for beneficiaries with a
proffered wage that corresponds to a wage level I typically associated
with entry-level workers would not be selected but registrations for
beneficiaries with a proffered wage that corresponds to a higher wage
level typically associated with more experienced workers would be
selected in the same occupational categories.\82\ However, for certain
occupations that have historically included only petitions for level I
positions, such as Civil Engineers or Architects, except Landscape and
Naval, the proposed rule does not project a significant increase in the
selection of higher wage level workers in the same occupations.\83\
Instead, the proposed rule projects increased distribution in
occupations that have historically included petitions for higher wage
level positions, such as Computer Occupations (all other), Electronics
Engineers (except computer), Materials Engineers, or Engineers, All
Other shown in Figure 2 and Figure 3. Therefore, DHS expects that the
proposed rule would impact the occupational distribution of H-1B
workers.
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\82\ Wage level I, II, III, and IV are defined as entry,
qualified, experienced, and fully competent, respectively. DOL, ETA,
``Prevailing Wage Determination Policy Guidance: Nonagricultural
Immigration Programs'' (revised Nov. 2009), <a href="https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/NPWHC_Guidance_Revised_11_2009.pdf">https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/NPWHC_Guidance_Revised_11_2009.pdf</a>.
\83\ However, it is possible that such prospective employers
already pay a wage that corresponds to a higher wage level such that
the chance of selection would not be reduced under the proposed
rule, or that they would choose to pay a wage that corresponds to a
higher wage level in order to increase the chance of selection for
workers in level I positions.
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A prospective petitioner (employer) may respond to the proposed
rule in several ways. An employer could choose to increase the
proffered wage to increase the probability of getting its H-1B
registration selected. If employers choose to increase the proffered
wage, or if employers were already offering a salary corresponding to a
higher wage level, then this proposed rule might result in more
registrations (or petitions, if registration is suspended) with a
proffered wage that would correspond to wage level II, III, or IV, and
fewer registrations corresponding to wage level I. It is also possible
that an employer may choose not to make any changes in response to this
rule, especially those employers that were already offering a salary
corresponding to a higher wage level.
Other prospective employers may leave the position vacant if the
alien beneficiary they registered is not selected, because they would
not be able to justify raising the proffered wage to an amount that
corresponds to a higher wage level and that would have improved their
chance of selection. These employers might be unable to fill their
position(s). And other employers might incur additional costs to find
available replacement workers, such as by seeking out and/or training
other workers.\84\
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\84\ DHS has not quantified this cost but notes that in the
analysis accompanying the 2021 rule, DHS ``assume[d] that an entity
whose H-1B petition is denied will incur an average cost of $4,398
per worker (in 2019 dollars) . . . to search for and hire a U.S.
worker in place of an H-1B worker during the period of this economic
analysis. If petitioners cannot find suitable replacements for the
labor H-1B cap-subject beneficiaries would have provided if selected
and, ultimately, granted H-1B status, this final rule primarily will
be a cost to these petitioners through lost productivity and
profits.'' 86 FR at 1724. DHS welcomes comment on whether to add
such a cost to the quantified analysis for the final rule, as well
as any reliable data or reasonable assumptions regarding the
percentage of unselected registrants to which such a cost would
apply.
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The effects of this rulemaking on any given employer would depend
in part on the interaction of a number of complex variables that
constantly are in flux, including national, state, and local labor
market conditions, economic and business factors, the type of
occupations and skills involved, and the substitutability between H-1B
workers and U.S. workers.
DHS acknowledges costs incurred associated with loss of output from
not being able to employ the labor of H-1B beneficiaries. Costs
incurred associated with loss of potential output will be discussed as
a transfer later in this section.
[[Page 46010]]
Table 15 shows quantified economic impacts of the proposed rule. To
estimate the economic impact of the proposed rule, DHS uses the average
annual salary of H-1B cap-subject workers by wage level in FY 2024. In
Table 15, the average annual salary for wage level I is $85,006, for
wage level II is $103,071, for wage level III is $131,454, and for wage
level IV is $162,528. The estimated total annual salary paid to H-1B
cap-subject workers under the current selection process in FY 2024
dollars would be $8,862,595,799. However, under the proposed weighted
selection process, the estimated total annual salary paid to initial H-
1B cap-subject workers would increase because there would be fewer wage
level I workers and more wage level II, III, and IV workers. DHS
estimates that the total annual salaries paid to H-1B workers would
increase by $502,080,486 to $9,364,676,285. The $502 million increase
is the estimated quantifiable economic benefit resulting from the
proposed rule in the first year.
Table 15--Benefits and Transfers
--------------------------------------------------------------------------------------------------------------------------------------------------------
Level I Level II Level III Level IV Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Estimated Annual H-1B Cap-Subject Visa Granted (Random)....... 23,830 46,968 10,052 4,150 85,000
Estimated Annual H-1B Cap-Subject Visa Granted (Weighted)..... 13,731 49,342 14,548 7,379 85,000
Difference in Estimated Annual H-1B Cap-Subject Visa Granted -10,099 2,373 4,496 3,230 0
between Random and Weighted Selection........................
Average Annual Salary of H-1B Workers......................... $85,006 $103,071 $131,454 $162,528 ................
Estimated Total Annual Salary Paid to H-1B Cap-Subject Workers $2,025,655,768 $4,841,088,469 $1,321,409,280 $674,442,282 $8,862,595,799
(Random) *...................................................
Estimated Total Annual Salary Paid to H-1B Cap-Subject Workers $1,167,185,470 $5,085,685,684 $1,912,441,622 $1,199,363,508 $9,364,676,285
(Weighted) *.................................................
Benefits **................................................... $858,470,298 $244,597,215 $591,032,342 $524,921,226 $502,080,486
Transfers ***................................................. ................ ................ ................ ................ $858,470,298
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Source: USCIS analysis. USCIS OPQ, CLAIMS3 and ELIS, queried 3/2025, TRK #17265. Merged with LCA data from DOL. Disclosure Files for LCA Programs (H-1B,
H-1B1, E-3), FY 2018-FY 2024. DOL data downloaded from <a href="https://www.dol.gov/agencies/eta/foreign-labor/performance">https://www.dol.gov/agencies/eta/foreign-labor/performance</a>.
Estimated Total Annual Salary Paid to H-1B Cap-Subject Workers *: Multiplying Estimated Annual H-1B Cap-Subject Petition Approved by Average Annual
Salary of H-1B Workers for Random or Weighted.
Benefit **: Difference between estimated total annual salary paid to H-1B cap-subject workers for weighted and random selection process. $502,080,486
640 = $9,364,676,285-$8,862,595,799.
Transfer ***: Total annual salary paid to level I workers under random selection process who no longer work. This annual salary is transferred to level
II, level III, and level IV workers for part of their annual salary under proposed selection process. $858,470,298 = $2,025,655,768-$1,167,185,470
204.
The maximum initial granted period of stay for the H-1B status is
three years, with extensions for up to three years thereafter. Using
FY2022 through FY2024 data, DHS estimates the validity period of
approved H-1B cap-subject petitions to be 2.9 years for the initial
period and 2.2 years for an extension.\85\ Assuming all H-1B cap-
subject workers stay for the initial granted period of 2.9 years and
half of them extend their stay for 2.2 years, the average H-1B cap-
subject worker's duration of H-1B status is approximately 4 years.\86\
DHS recognizes that H-1B extensions vary across petitions and workers.
For purposes of this analysis, DHS believes it appropriate to assume
the average H-1B cap-subject worker's duration of H-1B status is 4
years to estimate the benefits and transfers of the proposed rule.
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\85\ Source: USCIS OPS, PRD, CLAIMS3 and ELIS queried 6/2025.
\86\ DHS assumes that half of H-1B workers who were initially
subject to the H-1B numerical cap work for a total of 3 years in the
United States as H-1B nonimmigrants and the other half work for a
total of 5 years, such that the average is 4 years.
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The estimated economic benefits in the first year when the new
registration selection process is in effect is approximately $502
million. Assuming H-1B cap-subject workers work an average of four
years in U.S., these benefits will accrue for three additional years.
The benefits in the second year would be about $1,004 million, which
includes the initial $502 million in benefits accrued from new H-1B
cap-subject workers with higher wages in the first year plus an
estimated $502 million in benefits accrued from H-1B cap-subject
workers in the second year. Similarly, the benefits in years 3 and 4
are $1,506 million and $2,008 million reflecting granted H-1B cap-
subject workers in the current and prior three years.
In addition to the $502 million in first-year benefits discussed
previously, the $9.4 billion in first-year H-1B wages resulting from
the proposed rule also contains a transfer from wage level I workers to
wage level II, III, and IV workers. When a regulation generates a gain
for one group and an equal-dollar-value loss for another group, the
regulation is said to cause a transfer from the latter group to the
former.\87\ When H-1B allocations change from wage level I workers to
higher wage level workers, the benefits of the H-1B classification are
transferred from wage level I workers to higher wage level workers. For
example, if a wage level IV worker whose annual salary is $160,000 is
selected instead of a wage level I worker whose annual salary is
$85,000, then $85,000 of benefits is transferred from the wage level I
worker to the wage level IV worker (the difference of $75,000 is a
benefit to the level IV worker). DHS estimates that transfers from wage
level I workers to other wage level workers would be $858,470,298 in
the first year under the proposed rule.
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\87\ OMB, ``Circular A-4'' (Sept. 17, 2003),
<a href="http://trumpwhitehouse.archives.gov/sites/whitehouse.gov/files/omb/circulars/A4/a-4.pdf">trumpwhitehouse.archives.gov/sites/whitehouse.gov/files/omb/circulars/A4/a-4.pdf</a> (last visited Aug. 1, 2025).
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Assuming H-1B cap-subject workers work an average of four years,
transfers would also accrue for three additional years. The transfers
in the second year would be approximately $1,717 million and in years 3
and 4 the transfers would be about $2,575 million and $3,434 million,
respectively. In years 5 and beyond, the transfers would be
approximately $3,434 million. These transfers are the costs incurred
associated with loss of output from not being able to employ the labor
of wage level I H-1B workers for the employers who registered H-1B
workers at wage level I. Whereas the transfers are a benefit to the
employers who registered H-1B workers at higher wage levels because
they would expect gains in output by being able to employ H-1B workers.
To the extent that benefits and transfers are estimated using LCA data,
and proffered wage
[…truncated; see source link]Indexed from Federal Register on September 24, 2025.
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