Last week, the Department of Homeland Security announced a proposed rule that would prioritize the selection of H-1B registrations (or petitions, if the registration process is suspended) based on corresponding wage levels. Currently, H-1B visas are awarded by lottery when petitions exceed the annual visa cap. DHS said the new rule would better protect the economic interests of US workers, while still allowing US 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, DHS said. If finalized as proposed, the wage-based 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.
“The H-1B program is often exploited and abused by US employers, and their US clients, primarily seeking to hire foreign workers and pay lower wages,” said Acting DHS Deputy Secretary Ken Cuccinelli. “The current use of random selection to allocate H-1B visas makes it harder for businesses to plan their hiring, fails to leverage the H-1B program to truly compete for the world’s best and brightest, and hurts American workers by bringing in relatively lower-paid foreign labor at the expense of the American workforce.”
This effort would only affect H-1B registrations submitted by prospective petitioners seeking to file H-1B cap-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 published the rule in the Federal Register on Monday. Interested parties will have until Dec. 2 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.