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DHS Proposes Major Change to the H-1B Quota Selection Process

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Pasricha & Patel

U.S. Department of Homeland Security (DHS) has announced a proposal to change the process by which the USCIS selects the H-1B cap-subject petitions each year. Instead of the random selection process that has been in place for many years, DHS proposes that a new wage-level based selection process be implemented in its place.

The proposed new system would generally first select H-1B quota registrations that are based on the highest Occupational Employment Statistics (OES) prevailing wage level that the offered wage equals or exceeds for the relevant Standard Occupational Classification (SOC) code and areas of intended employment. DHS also says that the proposed rule would not affect the order of selection between the regular cap and the advanced degree exemption cap. The wage level ranking would occur first for the regular cap and then for the advanced degree exemption.

DHS explains their reasoning for proposing such a drastic rule change by them hoping to encourage U.S. employers to offer higher wages or file H-1B petitions for positions that require higher skills and higher-skilled workers, instead of “using the program to fill relatively lower-paid vacancies”. DHS also claims that this rule revamp would likely result in maximizing the H-1B cap allocations by making sure that H-1B slots are filled by the best and brightest workers.

DHS does say that this wage-level based selection process is only relevant to the annual H-1B quota selection process, and it does not impact any existing H-1B workers’ petitioning process.

With this latest proposal, it is not hard to also conclude that this represents further attempts by the DHS and other U.S. government agencies to place further hurdles on U.S. employers who want to employ H-1B workers, especially in light of the recent introduction of the wage level changes, as well as proposed rule changes to existing H-1B filing requirements.

To be clear, this proposed rule will be in public comment period once the Notice of Proposed Rule Making (NPRM) is published in the Federal Register for the standard 60 day comment period. So, this is not the final rule yet.

Due to the frequent developments in immigration rules and regulations, particularly in these last few months, we do encourage our readers to regularly check with our site for further updates regarding the latest news and developments in immigration.

Should you have any specific questions about this proposed rule change, as well as any other questions about immigration, we encourage you to contact our office for formal consultation.