The Department of Homeland Security (DHS) has published a final rule substituting last year’s random selection registration process with one based on the wage offered to the worker. Under this new rule, cases with higher wages are more likely to be chosen.

The new rule requires registration requests to be chosen 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 area(s) of intended employment.

For example if the offered salary for an Electrical Engineer is $70,000.00 and it meets or exceeds Prevailing Wage Level II for the place of employment, the registration request will be classified, for selection purposes, as a Level II case.

The USCIS will not change the order in which it selects regular and masters cap registration requests. The prevailing wage level ranking will precede both selection processes.

Assuming more requests are received than there are H-1B “slots” (which is very, very likely to happen) the USCIS will rank and select the registrations received on the basis of the highest wage level beginning with Wage Level IV and proceeding in descending order with OES wage levels III, II, and I (with the USCIS acknowledging virtually no Level I requests will be selected).

If the wage reflected in the request is below Wage Level I (due to being base on a non-OES prevailing wage determination) the USCIS will classify it as a Level I.

If the H-1B employee will work in multiple locations, classify the request based on the lowest corresponding wage level that the proffered wage will equal or exceed.

To accommodate these changes, DHS has proposed changes to the H-1B electronic registration tool and Form I-129 that would mandate petitioners indicate the highest wage level that the proffered wage equals or exceeds for the relevant occupation in the area of intended employment.

In addition the USCIS may deny or revoke approval of a later-filed petition by the petitioner on behalf of the same beneficiary, if it determines the second submission is an attempt to “unfairly” reduce the person’s compensation after indicating a higher amount on the registration request to increase chances of selection but will not deny such an application solely because of a lower wage.

The rule will take effect on March 9, 2021, but the incoming Biden Administration has indicated it will issue a memorandum on January 20 delaying implementation of “midnight regulations” (i.e., those issued since the election but not yet effective).

In addition, this rule will almost certainly be challenged in federal court by those seeking an injunction which would delay its implementation.

We will continue to report on this ongoing issue.