The Department of Homeland Security (DHS or the Department) proposes to amend its regulations governing the process by which U.S. Citizenship and Immigration Services (USCIS) selects H-1B registrations for filing of H-1B cap-subject petitions (or H-1B petitions for any year in which the registration requirement will be suspended), by generally first selecting registrations based on the highest Occupational Employment Statistics (OES) prevailing wage level that the proffered wage equals or exceeds for the relevant Standard Occupational Classification (SOC) code and area(s) of intended employment. This proposed rule would not affect the order of selection as between the regular cap and the advanced degree exemption. The wage level ranking would occur first for the regular cap selection and then for the advanced degree exemption. Rote ordering of petitions leads to impossible results because petitions are submitted simultaneously. A random lottery system is reasonable, but inconsiderate of Congress's statutory purposes for the H-1B program and its administration. Instead, a registration system that faithfully implements the INA while prioritizing registrations based on wage level within each cap would increase the average and median wage levels of H-1B beneficiaries who would be selected for further processing under the H-1B allocations. Moreover, it would maximize H-1B cap allocations, so that they more likely would go to the best and brightest workers.
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