Release Date: 10/28/2020 

Today, the Department of Homeland Security (DHS)announced the transmission to the Federal Register of a notice of proposed rulemaking (NPRM) that would prioritize the selection of H-1B registrations (or petitions, if the registration process is suspended) based on corresponding wage levels in order to better protect the economic interests of U.S. workers, while still allowing U.S. employers to meet their personnel needs and remain globally competitive. 

Modifying the H-1B cap selection process by replacing the random selection process with a wage-level-based selection process is a better way to allocate H-1Bs when demand exceeds supply. If finalized as proposed, this new selection process would incentivize employers to offer higher wages or petition for positions requiring higher skills and higher-skilled workers instead of using the program to fill relatively lower-paid vacancies. 

This effort would only affect H-1Bregistrations submitted by prospective petitioners seeking to file H-1Bcap-subject petitions. It would be implemented for both the H-1B regular cap and the H-1B advanced degree exemption, but would not change the order of selection between the two as established by the H-1B registration requirement final rule. 

DHS will open a public comment period once the NPRM is published in the Federal Register. Interested parties will have 30days to submit comments relevant to the proposed rule and 60 days to submit comments relevant to the proposed information collection. The Department will review all properly submitted comments, consider them carefully, and draft responses before issuing a final rule.