New USCIS H-1B Regulation Changing the H-1B Registration Policy

Recently USCIS issued a new proposed regulation seeking to change how the H-1B registration and selection process is carried out for H-1B Cap Cases. Currently, USCIS accepts registrations through a certain date and performs a random selection process to determine which applications will be selected and not accepted.

The proposed regulation would change this selection process. Instead of a random process, USCIS would make the selection process based upon the wages offered to the foreigners. Before explaining the system, it is important to understand the Prevailing Wage system. The DOL (and USCIS) has an occupation classification system (SOC (Specific Occupational Classifications) Codes). Each code has four wages assigned to it – Level 1, Level 2, Level 3, and Level 4. The wage levels are based upon the skill level needed to carry out the position. So Level 1 would be entry-level, etc. This is the wage system that USCIS is proposing to use to select which H-1Bs will be accepted towards the 85,000 cap.

USCIS’s proposal is that first, it will select those applications that qualify for the Master’s cap in which the persons are being paid at a Level 4 wage or higher. If all 20,000 Master’s cap cases are filled, the selection process will stop there. If there are still spots open, then it would take those being paid at a Level 3 wage level or higher. And so on. The same would then be done for the regular 65,000 cap.

There are several issues with this proposal. First, USCIS’s stated goal here is to ensure that US Workers are being protected. The “hope” of USCIS is that employers will use the H-1B process to fill high paid positions instead of lower-paid positions. What is the logical outcome of this? That there will be more low paying positions for US Workers and less higher-paying positions. I am not quite sure how this is actually helping US Workers. This is a major issue.

The second issue is that nowhere in the statute does it allow USCIS to set up a selection process based upon ANY factors. In other words, the Statute demands a randomized process. USCIS actually took this position just last year (2019) when it implemented the current selection process. Specifically USCIS Stated in response to a comment: “DHS believes, however, that prioritization of selection on other bases such as those suggested by the commenters would require statutory changes. DHS believes that implementing a quota would be inconsistent with the existing statute, as Congress has implemented quotas in other contexts when it has intended to do so.” 4 Fed. Reg. 888 at 913 (January 31, 2019).

At this point, the new regulation is still in the proposal stage (comment stage). We will update you as to what happens to this regulation – if it is withdrawn when the new administration comes in, if it is amended, or finalized and published.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

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