U.S. Citizenship and Immigration Services (USCIS) recently issued a proposed rule that would change the way it selects the registrations of U.S. employers that want to file H-1B petitions subject to the annual “cap.” Currently, when USCIS receives more petitions than allowed under the annual limit it relies on a random lottery to select Petitions for processing. In its place, USCIS would select petitions based on the registrations received starting with the highest salary level and working down.
The H-1B visa category is for jobs that require a worker to apply a body of highly specialized knowledge acquired through a bachelor’s or higher degree in a “specific specialty” or equivalent at the entry level. U.S. employers are prohibited from hiring an H-1B worker at a wage or under working conditions less favorable than comparable U.S. workers.
Congress placed an annual “cap” of 65,000 H-1B visa numbers for employers subject to the “cap.” Congress also provided for an additional 20,000 “advanced degree” visa numbers annually for foreign nationals who hold a master’s or higher degree from a U.S. institution of higher education.
In 2020, USCIS accepted “cap-subject” H-1B petitions for filing by random selection from required registrations. Obtaining (and specifying) a wage for an individual was not part of the H-1B registration system in 2020, which means this new rule would complicate the process.
Under the proposed scheme, USCIS would rank and select the petitions received on the basis of the highest Occupational Employment Statistics (OES) wage level that the proffered wage equals or exceeds for the relevant Standard Occupational Classification (SOC) code in the area of intended employment, beginning with OES wage level IV and proceeding in descending order with OES wage levels III, II, and I,” according to the proposed regulatory language.
According to USCIS, a change to wage level selection will “incentivize” employers to offer higher wages to H-1B workers and “disincentivize” alleged hiring abuses. But a study by the National Foundation for American Policy demonstrates that having H-1B workers in an occupation reduces, on average, the unemployment rate in the occupation.
Notably, USCIS acknowledged in another rulemaking, establishing the current registration system, that selection based on wage could only be accomplished by a change to the law. Now USCIS claims that wage level selection is a reasonable reading of the law.
This proposed rule is another example of this administration trying to restrict employment-based immigration that Congress has authorized. Excluding all H-1B petitions at Level 1 wages, and many at Level 2, will limit U.S. employers’ ability to hire recent foreign graduates of U.S. advanced degree programs. This is detrimental to many sectors of the economy, including, but not limited to, health care, education, and research and development.