# 90 FR 45986: Weighted Selection Process for Registrants and Petitioners Seeking To File Cap-Subject H-1B Petitions

> Federal · Regulations · In force

URL: https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2025-18473

## Section

- **Citation:** 90 FR 45986
- **Heading:** Weighted Selection Process for Registrants and Petitioners Seeking To File Cap-Subject H-1B Petitions
- **Jurisdiction:** Federal
- **Kind:** Regulations
- **Status:** In force
- **Text as of:** August 14, 2026
- **Source:** Compiled text
- **Location:** Federal Register / Vol. 90 / 90 FR 45986

## Text

DEPARTMENT OF HOMELAND SECURITY 8 CFR Part 214 [CIS No. 2820-25; DHS Docket No. USCIS-2025-0040] RIN 1615-AD01 Weighted Selection Process for Registrants and Petitioners Seeking To File Cap-Subject H-1B Petitions AGENCY:
U.S. Citizenship and Immigration Services, DHS.

ACTION:
Notice of proposed rulemaking.

SUMMARY:
The U.S. Department of Homeland Security (DHS) proposes to amend its regulations governing the process by which U.S. Citizenship and Immigration Services (USCIS) selects H-1B registrations for unique beneficiaries for filing of H-1B cap-subject petitions (or H-1B petitions for any year in which the registration requirement is suspended). DHS proposes to implement a weighted selection process that would generally favor the allocation of H-1B visas to higher skilled and higher paid aliens, while maintaining the opportunity for employers to secure H-1B workers at all wage levels, to better serve the Congressional intent for the H-1B program.

DATES:
Written comments on the notice of proposed rulemaking (NPRM) must be submitted on or before October 24, 2025. Written comments on the associated information collections 1615-0144 and 1615-0009 must be submitted on or before November 24, 2025. The electronic Federal Docket Management System will accept comments before midnight Eastern time at the end of that day.

ADDRESSES:
You may submit comments on the entirety of this proposed rulemaking package, identified by DHS Docket No. USCIS-2025-0040 through the Federal eRulemaking Portal: https://www.regulations.gov . In accordance with 5 U.S.C. 553(b)(4), the summary of this rule found above may also be found at https://www.regulations.gov . Follow the website instructions for submitting comments.
Comments submitted in a manner other than via https://www.regulations.gov, including emails or letters sent to DHS or USCIS officials, will not be considered comments on the proposed rule and may not receive a response from DHS. Please note that DHS and USCIS cannot accept any comments that are hand-delivered or couriered. In addition, DHS and USCIS cannot accept comments contained on any form of digital media storage devices, such as CDs/DVDs and USB drives. USCIS is also not accepting mailed comments at this time. If you cannot submit your comment by using https://www.regulations.gov, please contact the Regulatory Coordination Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, by telephone at (240) 721-3000 for alternate instructions.
FOR FURTHER INFORMATION CONTACT:
Business and Foreign Workers Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, 5900 Capital Gateway Drive, Camp Springs, MD 20746; telephone (240) 721-3000 (not a toll-free call).

SUPPLEMENTARY INFORMATION:

Table of Contents
I. Public Participation II. Background A. Purpose and Summary of the Proposed Regulatory Action B. Legal Authority C. The H-1B Visa Program's Numerical Cap and Exemptions D. Wage Requirement E. Need for Reform and Rationale for Proposed Rule F. Current Selection Process III. Discussion of Proposed Rule A. Required Information on the Registration and the Petition B. Process for Weighting and Selecting Registrations C. Process for Selecting Petitions in the Event of Suspended Registration D. H-1B Cap-Subject Petition Filing Following Registration E. Process Integrity F. Severability IV. Statutory and Regulatory Requirements A. Executive Orders 12866 (Regulatory Planning and Review), 13563 (Improving Regulation and Regulatory Review), and 14192 (Unleashing Prosperity Through Deregulation) B. Regulatory Flexibility Act of 1980 C. Unfunded Mandates Reform Act of 1995 D. Executive Order 13132 (Federalism) E. Executive Order 12988 (Civil Justice Reform) F. Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments) G. National Environmental Policy Act H. Paperwork Reduction Act of 1995 Table of Abbreviations
BLS—U.S. Bureau of Labor Statistics CBA—collective bargaining agreement CFR—Code of Federal Regulations CPI-U—Consumer Price Index for All Urban Consumers DHS—U.S. Department of Homeland Security DOD—U.S. Department of Defense DOL—U.S. Department of Labor ETA—Employment and Training Administration FR—Federal Register FY—Fiscal Year HR—human resources HSA—Homeland Security Act of 2002 INA—Immigration and Nationality Act LCA—Labor Condition Application for Nonimmigrant Workers NEPA—National Environmental Policy Act NPRM—notice of proposed rulemaking OES—Occupational Employment Statistics OEWS—Occupational Employment and Wage Statistics OFLC—Office of Foreign Labor Certification OMB—Office of Management and Budget OPQ—Office of Performance and Quality OPS—Office of Policy and Strategy PRA—Paperwork Reduction Act of 1995 PRD—Policy Research Division Pub. L.—Public Law PWD—prevailing wage determination RFA—Regulatory Flexibility Act of 1980 RIA—regulatory impact analysis RIN—Regulation Identifier Number SBA—U.S. Small Business Administration SCOPS—Service Center Operations Secretary—Secretary of Homeland Security SOC—Standard Occupational Classification UMRA—Unfunded Mandates Reform Act 1995 U.S.C.—United States Code USCIS—U.S. Citizenship and Immigration Services I. Public Participation
DHS invites all interested parties to participate in this rulemaking by submitting written data, views, comments, and arguments on all aspects of this proposed rule. DHS also invites comments that relate to the economic, environmental, or federalism effects that might result from this proposed rule. Comments must be submitted in English, or an English translation must be provided. Comments that will provide the most assistance to USCIS in implementing these changes will reference a specific portion of the proposed rule, explain the reason for any recommended change, and include data, information, or authority that support such recommended change. Comments submitted in a manner other than via https://www.regulations.gov, including emails or letters sent to DHS or USCIS officials, will not be considered comments on the proposed rule and may not receive a response from DHS.
Instructions: If you submit a comment, you must include the agency name (U.S. Citizenship and Immigration Services) and the DHS Docket No. USCIS-2025-0040 for this rulemaking. Please note all submissions will be posted, without change, to the Federal eRulemaking Portal at https://www.regulations.gov, and will include any personal information you provide. Therefore, submitting this information makes it public. You may wish to consider limiting the amount of https://www.regulations.gov .
Docket: For access to the docket and to read background documents or comments received, go to https://www.regulations.gov, referencing DHS Docket No. USCIS-2025-0040. You may also sign up for email alerts on the online docket to be notified when comments are posted or a final rule is published.
II. Background
A. Purpose and Summary of the Proposed Regulatory Action
DHS proposes to amend its regulations governing the selection process for registrations for H-1B cap subject petitions. Under the existing H-1B registration process, prospective petitioners (also known as registrants) seeking to file H-1B cap-subject petitions must first electronically register for each prospective beneficiary. USCIS then runs the H-1B selection process to randomly select unique beneficiaries based on properly submitted electronic registrations. If the unique beneficiary is randomly selected, then each registrant that registered for that beneficiary receives a registration selection notice and may file an H-1B cap-subject petition on their behalf.
DHS proposes to amend the process through which it selects registrations for unique beneficiaries to move away from a purely random selection process to a weighted selection process. This proposal would cover registrations for petitions subject to the regular cap and those asserting eligibility for the advanced degree exemption. The proposal would also change how USCIS selects petitions in circumstances where USCIS has suspended the registration process (for instance, because of technical issues with the electronic registration system).
Specifically, the proposal would weight registrations (or petitions) for selection generally based on each beneficiary's equivalent wage levels. When random selection is required because USCIS receives more registrations than USCIS projects to be needed to meet the numerical allocations, USCIS would conduct a weighted selection among the registrations for unique beneficiaries (or petitions) received generally based on the highest Occupational Employment and Wage Statistics (OEWS) wage level that the beneficiary's proffered wage would equal or exceed for the relevant Standard Occupational Classification (SOC) code in the area(s) of intended employment. The proffered wage is the wage that the employer intends to pay the beneficiary.
Under the proposed process, registrations for unique beneficiaries or petitions would be assigned to the relevant OEWS wage level and entered into the selection pool as follows: registrations for unique beneficiaries or petitions assigned wage level IV would be entered into the selection pool four times, those assigned wage level III would be entered into the selection pool three times, those assigned wage level II would be entered into the selection pool two times, and those assigned wage level I would be entered into the selection pool one time. Each unique beneficiary would only be counted once toward the numerical allocation projections, regardless of how many registrations were submitted for that beneficiary or how many times the beneficiary is entered in the selection pool. This proposed weighting and selection process would not alter the prevailing wage level associated with a given position for U.S. Department of Labor (DOL) purposes, which is informed by a comparison of the requirements for the proffered position to the normal requirements for the occupational classification. 1
1 DOL, Employment and Training Administration (ETA), “Prevailing Wage Determination Policy Guidance: Nonagricultural Immigration Programs” (revised Nov. 2009), https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/NPWHC_Guidance_Revised_11_2009.pdf .
Through the proposed regulatory revisions, DHS aims to implement the numerical cap in a way that incentivizes employers to offer higher wages, or to petition for positions requiring higher skills and higher skilled aliens, that are commensurate with higher wage levels. The proposed process would favor the allocation of H-1B visas to higher skilled and higher paid aliens, while maintaining the opportunity for employers to secure H-1B workers at all wage levels.
B. Legal Authority
The Secretary of Homeland Security (Secretary)'s authority for these proposed regulatory amendments is found in various sections of the Immigration and Nationality Act (INA or the Act), 8 U.S.C. 1101 et seq., and the Homeland Security Act of 2002 (HSA), Public Law 107-296, 116 Stat. 2135, 6 U.S.C. 101 et seq. General authority for issuing this proposed rule is found in section 103(a) of the INA, 8 U.S.C. 1103(a), which authorizes the Secretary to administer and enforce the immigration and nationality laws and establish such regulations as the Secretary deems necessary for carrying out such authority, as well as section 112 of the HSA, 6 U.S.C. 112, which vests all of the functions of DHS in the Secretary and authorizes the Secretary to issue regulations. 2 Further authority for these proposed regulatory amendments is found in:
2 Although several provisions of the INA discussed in this NPRM refer exclusively to the “Attorney General,” such provisions are now to be read as referring to the Secretary of Homeland Security by operation of the HSA. See 6 U.S.C. 202(3), 251, 271(b), 542 note, 552(d), 557; 8 U.S.C. 1103(a)(1), (g), 1551 note; Nielsen v. Preap, 586 U.S. 392, 397 n.2 (2019); see also 6 U.S.C. 522 (“Nothing in this chapter, any amendment made by this chapter, or in section 1103 of Title 8, shall be construed to limit judicial deference to regulations, adjudications, interpretations, orders, decisions, judgments, or any other actions of the Secretary of Homeland Security or the Attorney General.”).
• Section 101(a)(15)(H)(i)(b) of the INA, 8 U.S.C. 1101(a)(15)(H)(i)(b), which establishes the H-1B nonimmigrant classification;
• Section 214(a)(1) of the INA, 8 U.S.C. 1184(a)(1), which authorizes the Secretary to prescribe, by regulation, the time and conditions of the admission of nonimmigrants;
• Section 214(c)(1) of the INA, 8 U.S.C. 1184(c)(1), which, inter alia, authorizes the Secretary to prescribe how an importing employer may petition for nonimmigrant workers, including nonimmigrants described at section 101(a)(15)(H)(i)(b) of the INA, 8 U.S.C. 1101(a)(15)(H)(i)(b), as well as the form of the petition and the information that an importing employer must provide in the petition;
• Section 214(g) of the INA, 8 U.S.C. 1184(g), which, inter alia, prescribes the H-1B numerical limitations, various exceptions to those limitations, and the period of authorized admission for H-1B nonimmigrants;
• Section 214(i) of the INA, 8 U.S.C. 1184(i), which sets forth the definition and requirements of a “specialty occupation”;
• Section 235(d)(3) of the INA, 8 U.S.C. 1225(d)(3), which authorizes “any immigration officer . . . to administer oaths and to take and consider evidence of or from any person touching the privilege of any alien or person he believes or suspects to be an alien to enter, reenter, transit through, or reside in the United States or concerning any matter which is material and relevant to the enforcement of [the INA] and the administration of [DHS]”;
• Section 287(b) of the INA, 8 U.S.C. 1357(b), which authorizes the taking and consideration of evidence “concerning any matter which is material or relevant to the enforcement of [the INA] and the administration of [DHS]”;
• Section 101(b)(1)(F) of the HSA, 6 U.S.C. 111(b)(1)(F), which provides that a primary mission of DHS is to “ensure that the overall economic security of the United States is not diminished by efforts, activities, and programs aimed at securing the homeland”;
• Section 402 of the HSA, 6 U.S.C. 202, which charges the Secretary with “[e]stablishing and administering rules 3 . . . governing the granting of visas or other forms of permission . . . to enter the United States” and “[e]stablishing national immigration enforcement policies and priorities”; see also HSA sec. 428, 6 U.S.C. 236; and
3 Section 102(e) of the HSA, 6 U.S.C. 112(e), provides that “the issuance of regulations by the Secretary shall be governed by the provisions of chapter 5 of title 5, except as specifically provided in this chapter, in laws granting regulatory authorities that are transferred by this chapter, and in laws enacted after November 25, 2002.”
• Section 451(a)(3) and (b) of the HSA, 6 U.S.C. 271(a)(3) and (b), transferring to USCIS the authority to adjudicate petitions for nonimmigrant status, establish policies for performing that function, and set national immigration services policies and priorities.
C. The H-1B Visa Program's Numerical Cap and Exemptions
The H-1B visa program allows U.S. employers to temporarily hire foreign workers to perform services in a specialty occupation, services related to a U.S. Department of Defense (DOD) cooperative research and development project or coproduction project, or services of distinguished merit and ability in the field of fashion modeling. See INA 101(a)(15)(H)(i)(b), 8 U.S.C. 1101(a)(15)(H)(i)(b); Immigration Act of 1990, Public Law 101-649, sec. 222(a)(2), 104 Stat. 4978 (Nov. 29, 1990); 8 CFR 214.2(h). A specialty occupation is defined as an occupation that requires the (1) theoretical and practical application of a body of highly specialized knowledge, and (2) attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum qualification for entry into the occupation in the United States. See INA 214(i)(l), 8 U.S.C. 1184(i)(l).
Congress has established limits on the number of foreign workers who may be granted initial H-1B nonimmigrant visas or status each fiscal year (FY) (commonly known as the “cap”). See INA sec. 214(g), 8 U.S.C. 1184(g). The total number of foreign workers who may be granted initial H-1B nonimmigrant status during any fiscal year may not exceed 65,000. See INA sec. 214(g), 8 U.S.C. 1184(g). Certain petitions are exempt from the 65,000 numerical limitation. 4 See INA sec. 214(g)(5) and (7), 8 U.S.C. 1184(g)(5) and (7). The annual exemption from the 65,000 cap for H-1B workers who have earned a qualifying U.S. master's or higher degree may not exceed 20,000 foreign workers. See INA sec. 214(g)(5)(C), 8 U.S.C. 1184(g)(5)(C).
4 Exempt petitions are petitions for (1) employment (or an offer of employment) at an institution of higher education or a related affiliated nonprofit entity, (2) employment (or an offer of employment) at a nonprofit research organization or a government research organization, or (3) H-1B workers who have earned a qualifying U.S. master's degree or higher degree. Also exempt are those petitions for beneficiaries who have previously been counted under the cap, unless eligible for a full 6-years of authorized admission when the petition is filed, and who seek to change jobs or extend their stay during their 6-year period of authorized admission, and those exempt from the 6-year period of authorized admission limitation based on section 104(c) or 106(a) and (b) of the American Competitiveness in the Twenty-First Century Act (AC21), Public Law 106-313, 114 Stat. 1254 (Oct. 17, 2000), as amended by section 11030A of the 21st Century Department of Justice Appropriations Authorization Act, Public Law 107-273, 116 Stat. 1758 (2002).
D. Wage Requirement
An H-1B petitioner generally must file with DOL a Labor Condition Application for Nonimmigrant Workers (LCA) attesting, among other things, that it will pay the beneficiary a wage that is either (1) the actual wage that it pays to all other individuals with similar experience and qualifications for the specific employment in question or (2) the prevailing wage for the occupational classification in the area of intended employment based on the best information available at the time of filing the application, whichever is greater. 5 The H-1B petitioner must also attest that it will provide working conditions for the beneficiary that will not adversely affect the working conditions of workers similarly employed. See INA sec. 212(n)(1)(A)(i)-(ii), 8 U.S.C. 1182(n)(1)(A)(i)-(ii); 20 CFR part 655, subpart H. DOL regulations state that the wage requirement includes the employer's obligation to offer benefits and eligibility for benefits provided as compensation for services to the H-1B nonimmigrant on the same basis, and in accordance with the same criteria, as the employer offers to similarly employed U.S. workers. See 20 CFR 655.731(c)(3). DOL regulations additionally provide that the employer must afford working conditions to the H-1B beneficiary on the same basis and in accordance with the same criteria as it affords to its U.S. workers who are similarly employed, and without adverse effect upon the working conditions of such U.S. workers. See 20 CFR 655.732(a).
5 An H-1B petition for H-1B2 DOD research and development project positions or services is exempt from the LCA requirement.
The LCA, certified by DOL, requires that the petitioner specify, among other information: The SOC code, the wage that an employer will pay the nonimmigrant worker, the prevailing wage rate for the job opportunity, the source of the prevailing wage rate, and the applicable prevailing wage level for the job opportunity if the OEWS survey is the source of the prevailing wage rate. 6 If there is an applicable collective bargaining agreement (CBA) that was negotiated at arms-length between a union and the employer that contains a wage rate applicable to the occupation, then the CBA must be used to determine the prevailing wage for a petitioner's job opportunity. 20 CFR 655.731(a)(2). In the absence of an applicable CBA, the petitioner generally has the option of determining the prevailing wage by one of three avenues: (1) obtaining a prevailing wage determination (PWD) issued by DOL; 7 (2) obtaining the prevailing wage from an independent authoritative source that satisfies the requirements set forth in 20 CFR 655.731(b)(3)(iii)(B); or (3) obtaining the prevailing wage from another legitimate source of wage information that satisfies the requirements set forth in 20 CFR 655.731(b)(3)(iii)(C). 20 CFR 655.731(a)(2)(ii)(A)-(C). An employer may also elect to rely on a wage determination issued pursuant to the provisions of the Davis Bacon Act, Public Law 107-217 (Aug. 21, 2002), as amended, 40 U.S.C. 276a et seq., or the McNamara-O'Hara Service Contract Act of 1965, Public Law 89-286 (Oct. 22, 1965), as amended, 41 U.S.C. 351 et seq., if applicable. 20 CFR 655.731(b)(3)(i). When using the OEWS survey to determine the prevailing wage for a particular job opportunity, the first step is to select the most relevant occupational classification by examining the employer's job opportunity and comparing it to the tasks, knowledge, and work activities generally associated with relevant 8 Then, the relevant prevailing wage level is selected by comparing the requirements for the job opportunity to the occupational requirements, that is, the tasks, knowledge, skills, and specific vocational preparation (education, training, and experience) generally required for acceptable performance in that occupation. 9 DOL utilizes four prevailing wage levels classified as “entry,” “qualified,” “experienced,” and “fully competent,” respectively, relative to the occupation. 10
6 DOL, ETA, Form ETA-9035 and ETA-9035e, Labor Condition Application for Nonimmigrant Workers, Items F.a.10-14 (expires Oct. 31, 2027), https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/Form%20ETA-9035_exp%2010.31.2027.pdf .
7 DOL, ETA, “Prevailing Wage Information and Resources,” https://www.dol.gov/agencies/eta/foreign-labor/wages (last visited May 2, 2025).
8 DOL, ETA, “Prevailing Wage Determination Policy Guidance: Nonagricultural Immigration Programs” (revised Nov. 2009), https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/NPWHC_Guidance_Revised_11_2009.pdf .
9 See id.
10 See id.
E. Need for Reform and Rationale for Proposed Rule
Congressional intent behind creating the H-1B program was, in part, to help U.S. employers fill labor shortages in positions requiring highly skilled or highly educated workers. 11 A key goal of the program at its inception was to help U.S. employers obtain the temporary employees they need to meet their business needs to remain competitive in the global economy. 12 To address legitimate countervailing concerns of the adverse impact foreign workers could have on U.S. workers, Congress enacted a number of measures intended to protect U.S. workers, including the annual numerical limitations. Congress was concerned that a surplus of foreign labor could depress wages for all workers in the long run and recognized the cap as a means of “continuous monitoring of all admissions.” 13
11 See H.R. Rep. 101-723(I) (1990), as reprinted in 1990 U.S.C.C.A.N. 6710, 6721.
12 See Bipartisan Policy Center, “Immigration in Two Acts,” at 7 (Nov. 2015), https://bipartisanpolicy.org/wp-content/uploads/2019/03/BPC-Immigration-Legislation-Brief.pdf, citing H.R. Rep. 101-723(I) supra note 10 at 6721 (“At the time [1990], members of Congress were also concerned about U.S. competitiveness in the global economy and sought to use legal immigration as a tool in a larger economic plan, stating that `it is unlikely that enough U.S. workers will be trained quickly enough to meet legitimate employment needs, and immigration can and should be incorporated into an overall strategy that promotes the creation of the type of workforce needed in an increasingly global economy.' ”).
13 See H.R. Conf. Rep. 101-955, at 126 (1990), as reprinted in 1990 U.S.C.C.A.N. 6784, 6790-91.
The demand for H-1B workers subject to the annual numerical limitations has exceeded the availability of visa numbers every year for more than a decade. 14 This high demand created a rush of simultaneous submissions at the beginning of the H-1B cap petition period, preventing application of the numerical limitations based solely on the order in which the petitions are received by USCIS. See Liu v. Mayorkas, 588 F. Supp. 3d 43, 48 (D.D.C. 2022) (discussing the high demand for H-1B visas, the operational challenges USCIS faced administering the H-1B cap because of the high demand, and the creation of the registration requirement).
14 Total Number of H-1B Cap Registration Submissions and Selections, FY 2021-FY 2025, USCIS Office of Performance and Quality (OPQ), data queried 3/2025, TRK #17518; Total Number of H-1B Cap-Subject Petitions Submitted, FY 2016-FY 2020, USCIS Service Center Operations (SCOPS), June 2019. See also Congressional Research Service, “Temporary Professional Foreign Workers: Background, Trends, and Policy Issues” (June 9, 2022), https://www.congress.gov/crs-product/R47159 (“Employer petitions for new H-1B workers have routinely exceeded the statutory numerical limits—in some years exceeding limits during the first week or even on the first day that petitions are accepted by USCIS.”).
Congress directed DHS to process earlier-filed petitions before later-filed petitions, see INA sec. 214(g)(3), 8 U.S.C. 1184(g)(3) (stating that aliens who are subject to the numerical limitations will be “issued visas (or otherwise provided nonimmigrant status) in the order in which the petitions are filed”), 15 but did not define what it means to “file” a petition, or how to order petitions that are filed during the same timeframe.
15 See also Registration Requirement for Petitioners Seeking to File H-1B Petitions on Behalf of Cap-Subject Aliens, 84 FR 888, 896 (Jan. 31, 2019) (noting that “a literal application of this statutory language [to issue visas or otherwise provide H-1B status in the order in which the petitions are filed, down to the second] would lead to an absurd result” because “[s]uch a literal application would necessarily mean that processing delays pertaining to a petition earlier in the petition filing order would preclude issuance of a visa or provision of status to all other H-1B petitions later in the petition filing order.” Therefore, USCIS' “longstanding approach to implementing the numerical limitation has been to project the number of petitions needed to reach the numerical limitation. . . .”).
The Secretary has discretion to prescribe rules to fill such gaps in the INA. As noted earlier in this preamble, the Secretary has broad authority to administer and enforce the INA, establish such regulations as the Secretary deems necessary for carrying out such authority, and to prescribe the time and conditions under which an alien may be admitted to the United States as a nonimmigrant and how an importing employer may petition for nonimmigrant workers. See INA secs. 103(a), 214(a)(1), and 214(c)(1), 8 U.S.C. 1103(a), 1184(a)(1), and 1184(c)(1).
DHS has leveraged these authorities to make significant improvements to the H-1B selection process over the years in response to the high demand, consistent with the purpose and structure of the annual numerical limitations. The registration process, for instance, selects among “registrations submitted electronically over a designated period of time to ensure the fair and orderly administration of the numerical allocations.” 84 FR at 896. 16
16 DHS notes that the registration process, like the petition process that applies when registration is suspended, faithfully implements INA sec. 214(g)(3), 8 U.S.C. 1184(g)(3) by, among other things, ensuring that earlier-filed registrations and petitions receive priority over later ones. For instance, in addition to allowing for a more efficient administration of the annual numerical allocations, the process accounts for the possibility that DHS will receive an insufficient number of simultaneously submitted registrations during the initial registration to meet the H-1B regular cap; in such a circumstance, registration will remain open until USCIS has received a sufficient number of registrations for unique beneficiaries to meet the cap. See 8 CFR 214.2(h)(8)(iii)(A)( 5 )( i ); see also 84 FR at 896 (explaining that, where an insufficient number of registrations have been received during the initial registration period, USCIS would select all of the registrations properly submitted during the initial registration period, and that registrations submitted after the initial registration would continue to be selected on a rolling basis until such time as a sufficient number of registrations have been received).
DHS's random selection process is a similar type of gap-filling measure. When this process was previously challenged, DHS prevailed. 17 The court observed that “[i]t is not difficult to envision a scenario where many more petitions arrive on the final receipt date than are needed to fill the statutory cap, and processing them `in order' . . . may also be random and arbitrary.” 18 This court importantly held that “Congress left to the discretion of USCIS how to handle simultaneous submissions” and “USCIS has discretion to decide how best to order those petitions.” 19 In short, DHS has authority to engage in reasoned decision making with regard to how to administer the H-1B petitioning process (including whether to require a registration process as an antecedent procedural step to be eligible to file an H-1B cap-subject petition), and how to best select among simultaneously submitted H-1B registrations or petitions. 20 Congress provided DHS
17 See Walker Macy LLC v. USCIS, 243 F. Supp. 3d 1156 (D. Or. 2017).
18 Id. at 1174.
19 Id. at 1176.
20 See Loper Bright Enters. v. Raimondo, 603 U.S. 369, 395 (2024) (explaining that a statute's meaning may be that the agency is authorized to exercise a degree of discretion and empowered to prescribe rules to fill in statutory gaps based on “reasoned decision making”); see also Liu v. Mayorkas, 588 F.Supp.3d 43, 55 (D.D.C. 2022) (finding that the registration requirement does not violate the INA, is not ultra vires, and that registration is merely “an antecedent procedural step to be eligible to file an H-1B cap[-subject] petition”); Walker Macy LLC v. USCIS, 243 F. Supp. 3d 1156 (D. Or. 2017). DHS acknowledges, as DHS did in the 2020 NPRM, that
DHS acknowledges that it has implemented regulations over the years that provide for a random selection from all petitions or registrations that occur within a certain timeframe. See, e.g., 70 FR 23775 (May 5, 2005), 84 FR 888 (Jan. 31, 2019). However, while the current random selection of petitions or registrations is reasonable, DHS believes it is neither the optimal, nor the exclusive method of selecting registrations or petitions toward the numerical allocations when more registrations or petitions, as applicable, are simultaneously submitted than projected as needed to reach the numerical allocations. Pure randomization does not serve the ends of the H-1B program or Congressional intent to help U.S. employers fill labor shortages in positions requiring highly skilled workers. 21 Under the current random selection process, in every fiscal year from FY 2019 through FY 2024, petitions for beneficiaries at wage level III and wage level IV were the least represented among all wage levels in cap-subject H-1B filings, both under the regular cap and the advanced-degree exemption. 22
21 See H.R. Rep. 101-723(I) (1990), as reprinted in 1990 U.S.C.C.A.N. 6710, 6721 (stating “The U.S. labor market is now faced with two problems that immigration policy can help to correct. The first is the need of American business for highly skilled, specially trained personnel to fill increasingly sophisticated jobs for which domestic personnel cannot be found and the need for other workers to meet specific labor shortages.”).
22 USCIS OPQ, CLAIMS3 and ELIS, queried 3/2025, TRK #17265. LCA data from DOL. Disclosure Files for LCA Programs (H-1B, H-1B1, E-3), FY-2018-FY-2024. DOL data downloaded from https://www.dol.gov/agencies/eta/foreign-labor/performance .
As discussed previously in this preamble, wage levels are used in determining a prevailing wage for a given occupation in a given location under the OEWS survey based on the education, training, and experience required for the specific position. Wage level I, which DOL has set at approximately the 17th percentile of the OEWS wage distribution for the relevant occupation in the relevant location, applies to positions requiring “entry” level workers; wage level II, set at approximately the 34th percentile, applies to positions requiring “qualified” workers; wage level III, set at approximately the 50th percentile, applies to positions requiring “experienced” workers; and wage level IV, set at approximately the 67th percentile, applies to positions requiring “fully competent” workers. 23 In other words, wage levels III and IV—the two wage levels that meet or exceed the median wage (50th percentile) of the OEWS wage distribution for a specific occupation and location—are the least represented wage levels in H-1B petitions under the current process.
23 See, e.g., Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States, 85 FR 63872, 63875 (Oct. 8, 2020) (later vacated); Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program, 80 FR 24146, 24148 n.6 (Apr. 29, 2015); Daniel Costa & Ron Hira, Economic Policy Institute, “H-1B Visas and Prevailing Wage Level” (May 4, 2020), https://www.epi.org/publication/h-1b-visas-and-prevailing-wage-levels .
DHS believes a better reasoned policy, consistent with the intent of the H-1B statutory scheme, is to utilize the numerical cap in a way that incentivizes a U.S. employer's recruitment of beneficiaries for positions requiring the highest skill levels within the visa classification or otherwise earning the highest wages in an occupational classification and area of intended employment, which generally correlate with higher skill levels. Put simply, because demand for H-1B visas has exceeded the annual supply for more than a decade, 24 DHS prefers that simultaneously submitted registrations for cap-subject H-1B visas be selected in a manner that favors beneficiaries earning the highest wages relative to their SOC codes and area(s) of intended employment.
24 Total Number of H-1B Cap Registration Submissions and Selections, FY 2021—FY 2025, USCIS OPQ, data queried 3/2025, TRK #17518; Total Number of H-1B Cap-Subject Petitions Submitted, FY 2016-FY 2020, USCIS SCOPS, June 2019. See also Congressional Research Service, “Temporary Professional Foreign Workers: Background, Trends, and Policy Issues” (June 9, 2022), https://www.congress.gov/crs-product/R47159 .
DHS believes that salary generally is a reasonable proxy for skill level. 25 DHS data show a correlation between higher salaries and higher skill and wage levels. 26 As a position's required skill level increases relative to the occupation, so, too, may the wage level, and necessarily, the corresponding prevailing wage. 27 A proffered wage that corresponds to the prevailing wage rate reflecting a higher wage level is generally a reasonable proxy for the higher level of skill required for the position. DHS recognizes, however, that some employers may choose to offer a higher proffered wage to a certain beneficiary to be more competitive in the H-1B selection process. In that situation, while the proffered wage may not necessarily reflect the skill level required for the position in the strict sense of DOL's PWD, the proffered wage still is a reasonable reflection of the value the employer has placed on that specific beneficiary. DHS believes that an employer who offers a higher wage than required by the prevailing wage level does so because that higher wage is a clear reflection of the beneficiary's value to the employer, which, even if not related to the position's skill level per se, reflects the unique qualities the beneficiary possesses. Accordingly, the changes proposed in this rule would better ensure that the H-1B cap selection process favors relatively higher-skilled, higher-valued, or higher-paid foreign workers rather than continuing to allow numerically-limited cap numbers to be allocated predominantly to workers in lower skilled or lower paid positions. 28 29
25 See DOL, ETA, “Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program,” 76 FR 3452, 3453 (Jan. 19, 2011) (it is a “largely self-evident proposition that workers in occupations that require sophisticated skills and training receive higher wages based on those skills.”); Daniel Costa & Ron Hira, Economic Policy Institute, “H-1B Visas and Prevailing Wage Level” (May 4, 2020), https://www.epi.org/publication/h-1b-visas-and-prevailing-wage-levels . (“Specialized skills should command high wages; such skills are typically a function of inherent capability, education level, and experience. It would be reasonable to expect that these workers should receive wages higher than the median wage.”).
26 For example, in Computer and Mathematical Occupations, the FY 2024 national median salary of H-1B workers for Level I was $89,253; for Level II was $106,000; for Level III was $140,000; and for Level IV was $163,257. USCIS OPQ, SAS PME C3 Consolidated, VIBE, DOL OFLC TLC Disclosure Data, queried 4/2025, TRK #17347.
27 DOL, ETA, “Prevailing Wage Determination Policy Guidance: Nonagricultural Immigration Programs” (revised Nov. 2009), https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/NPWHC_Guidance_Revised_11_2009.pdf (noting that a wage level increase may be warranted if a position's requirements indicate skills that are beyond those of an entry level worker).
28 See Daniel Costa & Ron Hira, Economic Policy Institute, “H-1B Visas and Prevailing Wage Level” (May 4, 2020), https://www.epi.org/publication/h-1b-visas-and-prevailing-wage-levels/ (pointing to data that “all H-1B employers, but especially the largest employers, use the H-1B program either to hire relatively lower-wage workers (relative to the wages paid to other workers in their occupation) who possess ordinary skills or to hire skilled workers and pay them less than the true market value”); George Fishman, Center for Immigration Studies, “Elon Musk is Right about H-1Bs” (Jan. 9, https://cis.org/Report/Elon-Musk-Right-about-H1Bs (noting the benefit of giving preference to prospective H-1B workers who are “the best and brightest (those promised the highest salaries)”); Norm Matloff, Barron's, “Where are the `Best and Brightest?' ” (June 8, 2013), https://www.barrons.com/articles/SB50001424052748703578204578523472393388746 (“The data show that most of the foreign tech workers are ordinary folks doing ordinary work.”); Norman Matloff, Center for Immigration Studies, “H-1Bs: Still Not the Best and the Brightest” (May 12, 2008), https://cis.org/Report/H1Bs-Still-Not-Best-and-Brightest (presenting “data analysis showing that the vast majority of the foreign workers—including those at most major tech firms—are people of just ordinary talent, doing ordinary work.”); Adam Ozimek, Connor O'Brien, & John Lettieri, Economic Innovation Group, “Exceptional by Design” (Jan. 2025), https://eig.org/wp-content/uploads/2025/01/Exceptional-by-Design.pdf (“Wages are a clear expression of the value firms expect a worker to contribute, yet the H-1B gives no preference to workers with higher salary offers.”).
29 See Daniel Costa & Ron Hira, Economic Policy Institute, “H-1B Visas and Prevailing Wage Level” (May 4, 2020), https://www.epi.org/publication/h-1b-visas-and-prevailing-wage-levels/ .
While DHS prefers that cap-subject H-1B visas be allocated in a manner that favors beneficiaries earning the highest wages, DHS also recognizes the value in maintaining the opportunity for employers to secure H-1B workers at all wage levels. In this respect, this proposed rule differs from the wage-based selection rule that DHS finalized in 2021. On November 2, 2020, DHS proposed a rule (85 FR 69236) to amend its regulations governing the process by which 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. The rule was finalized on January 8, 2021 (2021 H-1B Selection Final Rule, 86 FR 1676), and its implementation was delayed shortly thereafter. 30 However, after the U.S. District Court for the Northern District of California vacated it, 31 the rule was subsequently withdrawn and was therefore never implemented. 32 Under the 2021 H-1B Selection Final Rule, USCIS would have ranked and selected registrations generally based on the highest Occupational Employment Statistics (OES) 33 prevailing wage level that the proffered wage equaled or exceeded for the relevant SOC code and area(s) of intended employment, beginning with level IV and proceeding in descending order with levels III, II, and I. The 2021 H-1B Selection Final Rule was expected to result in the likelihood that registrations for level I wages would not be selected, as well as a reduced likelihood that registrations for level II would be selected. 86 FR 1676, 1724 (Jan. 8, 2021). DHS believes the selection process finalized under the 2021 H-1B Selection Final Rule was a reasonable approach to facilitate the admission of higher skilled or higher paid workers. However, DHS now believes that rule did not capture the optimal approach because it effectively left little or no opportunity for the selection of lower wage level or entry level workers, some of whom may still be highly skilled. 34 Unlike the 2021 H-1B Selection Final Rule, under this proposed rule, USCIS would assign a weight to—rather than rank and select—registrations generally based on their corresponding OEWS wage level. 35 By engaging in a wage-level-based weighting of registrations for unique beneficiaries, DHS would better ensure that initial H-1B visas and status grants would more likely go to the highest skilled or highest paid beneficiaries, while not effectively precluding those at lower wage levels. Facilitating the admission of higher skilled workers “would benefit the economy and increase the United States' competitive edge in attracting the `best and the brightest' in the global labor market,” consistent with the goals of the H-1B program. 36
30 The rule was scheduled to go into effect on March 9, 2021. On February 8, 2021, DHS issued a final rule delaying the effective date of the H-1B Selection Final Rule to December 31, 2021. Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject H-1B Petitions; Delay of Effective Date, 86 FR 8543 (Feb. 8, 2021).
31 Chamber of Commerce of the U.S. v. DHS, No. 4:20-cv-07331, 2021 WL 4198518 (N.D. Cal. Sept. 15, 2021) (vacating the rule as improperly issued but not reaching the merits of plaintiffs' alternative arguments).
32 Following several months of litigation, on September 15, 2021, the court vacated the rule and remanded the matter to DHS and DHS subsequently withdrew the rule. On December 22, 2021, DHS issued a final rule to withdraw the final rule published on January 8, 2021, because that rule had been vacated by a Federal district court. Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject H-1B Petitions, Implementation of Vacatur, 86 FR 72516 (Dec. 22, 2021).
33 The 2021 H-1B Selection Final Rule referred to the OES wage level based on terminology used at the time. However, the OES program has since started using the name Occupational Employment and Wage Statistics (OEWS). See https://www.bls.gov/oes/notices/2023/occupational-employment-and-wage-statistics-oews.htm (last visited May 2, 2025).
34 For example, an entry level (level I) worker in an occupation classified by the Occupational Information Network (O*NET) as a Job Zone 5 occupation, which generally requires a graduate degree, may be higher skilled than a qualified (level II) worker in a Job Zone 4 occupation, which generally requires a bachelor's degree. See O*NET Online, “Job Zones Overview,” https://www.onetonline.org/help/online/zones (last visited Apr. 11, 2025). O*NET, which maintains a database of occupational information, is developed under the sponsorship of ETA. See O*NET Online, “About O*NET,” https://www.onetcenter.org/overview.html (last visited Apr. 11, 2025).
35 The weighted selection method proposed in this rule is similar to an “alternative” approach that DHS described (and requested public comments on) in the 2020 NPRM. 85 FR 69236, 69242 (Nov. 2, 2020). As DHS received only one responsive comment, which offered no substantive rationale in support of or against the alternative approach, DHS declined to consider it further in the final rule. 86 FR 1676, 1709 (Jan. 8, 2021).
36 See Muzaffar Chishti & Stephen Yale-Loehr, Migration Policy Institute, “The Immigration Act of 1990: Unfinished Business a Quarter-Century Later” (July 2016), https://www.migrationpolicy.org/sites/default/files/publications/1990-Act_2016_FINAL.pdf (“Sponsors of [the Immigration Act of 1990, which created the H-1B program as it exists today,] believed that facilitating the admission of higher-skilled immigrants would benefit the economy and increase the United States' competitive edge in attracting the `best and the brightest' in the global labor market.”).
F. Current Selection Process
DHS implemented the electronic H-1B registration process after determining that it could introduce a cost-saving, innovative solution to facilitate the selection of H-1B cap-subject petitions toward the annual numerical allocations. 84 FR 888 (Jan. 31, 2019). Under the current regulation, all petitioners seeking to file an H-1B cap-subject petition must first electronically submit a registration for each beneficiary on whose behalf they seek to file an H-1B cap-subject petition, unless USCIS suspends the registration requirement. 8 CFR 214.2(h)(8)(iii)(A)( 1 ). In February 2024, building on its programmatic experience since implementing the H-1B registration process, DHS amended its regulations to implement a beneficiary-centric selection process for H-1B registrations to ensure each beneficiary would have the same chance of being selected, regardless of the number of registrations submitted on his or her behalf, among other integrity measures. 89 FR 7456 (Feb. 2, 2024). Under this beneficiary-centric selection process, registrations are counted based on the number of unique beneficiaries who are registered. 8 CFR 214.2(h)(8)(iii)(A)( 4 ). Each unique beneficiary is counted once toward the random selection, regardless of how many registrations are submitted for that beneficiary. Id. A prospective petitioner whose registration is selected is eligible to file an H-1B cap-subject petition based on the selected registration during the associated filing period. 8 CFR 214.2(h)(8)(iii)(A)( 1 ).
USCIS monitors the number of H-1B registrations for unique beneficiaries it receives during the announced registration period. At the conclusion of that period, if more registrations for unique beneficiaries are submitted than projected as needed to reach the numerical allocations, USCIS randomly selects from among unique beneficiaries for whom registrations were properly submitted, the number of unique beneficiaries projected as needed to reach the H-1B numerical allocations. 8 CFR 214.2(h)(8)(iii)(A)( 5 ) and ( 6 ). Under this random H-1B registration selection process, USCIS first selects from a pool of all unique beneficiaries, including those eligible for the advanced degree exemption, a sufficient number of unique beneficiaries projected as needed to reach the regular cap. Id. Then from the remaining unselected beneficiaries who are eligible for the advanced degree exemption, USCIS selects a sufficient number of unique beneficiaries projected as needed to meet this exemption. Id.
A prospective petitioner that properly registered for a beneficiary who is selected is notified of the selection and instructed that the petitioner is eligible to file an H-1B cap-subject petition for the beneficiary named in the selected registration within a filing period that is at least 90 days in duration. 8 CFR 214.2(h)(8)(iii)(D)( 3 ). When registration is required, a petitioner seeking to file an H-1B cap-subject petition is not eligible to file the petition unless the petition is based on a valid, selected registration for the beneficiary named in the petition. 37 8 CFR 214.2(h)(8)(iii)(D)( 1 ).
37 During the initial filing period, if USCIS does not receive a sufficient number of petitions projected as needed to reach the numerical allocations, USCIS will select additional unique beneficiaries, or reopen the registration process, as applicable, to receive registrations for the number of unique beneficiaries projected as needed to reach the numerical allocations. See 8 CFR 214.2(h)(8)(iii)(A)( 7 ).
In the event that there is an insufficient number of unique beneficiaries during the annual initial registration period to meet the number projected as needed to reach the numerical limitation, USCIS would select all of the unique beneficiaries for whom registrations were properly submitted during the initial registration period and notify all of the registrants that they may proceed with the filing of an H-1B cap-subject petition based on their selected registration(s). 8 CFR 214.2(h)(8)(iii)(A)( 5 ) and ( 6 ). USCIS would keep the registration period open beyond the initial registration period, allowing for the submission of registrations for additional beneficiaries, until it determines that a sufficient number of unique beneficiaries have registrations properly submitted on their behalf to reach the applicable numerical limitations. Id. When necessary, USCIS may randomly select the remaining number of unique beneficiaries deemed necessary to meet the applicable numerical limitation from among the registrations for unique beneficiaries received on the final registration date. Id.
The current selection process also allows for selection based solely on the submission of petitions in any year in which the registration process is suspended due to technical or other issues. 8 CFR 214.2(h)(8)(iv)(B). That process also allows for random selection in any year in which the number of petitions received on the final receipt date exceeds the number projected to meet the applicable numerical limitation. Id.
III. Discussion of Proposed Rule
DHS proposes to amend the way USCIS selects unique beneficiaries, and the registrations submitted on their behalf for H-1B cap-subject petitions (or petitions, if the registration process is suspended), including those eligible for the advanced degree exemption, as follows.
A. Required Information on the Registration and the Petition
For purposes of the weighting and selection process proposed in this rulemaking, a registrant would be required to select the box for the highest OEWS wage level (“wage level IV,” “wage level III,” “wage level II,” or “wage level I”) that the beneficiary's proffered wage generally equals or exceeds for the relevant SOC code in the area(s) of intended employment. 38 See proposed 8 CFR 214.2(h)(8)(iii)(A)( 4 )( i ). The registrant would also be required to provide the appropriate SOC code of the proffered position and the area of intended employment that served as the basis for the OEWS wage level indicated on the registration, in addition to any other information required on the electronic registration form (and on the H-1B petition) as specified in form instructions. The proffered wage, 39 SOC code, and area(s) of intended employment would all be indicated on the LCA filed with the petition. While an LCA is not a requirement for registration, a valid registration must represent a bona fide job offer ( see proposed 8 CFR 214.2(h)(10)(ii)), and each prospective petitioner must make the necessary certifications ( see proposed 8 CFR 214.2(h)(8)(iii)(A)( 4 )( i )), when submitting a registration, which, among other things, include that the registration is based on a bona fide job offer and that the prospective petitioner intends to file an H-1B petition on behalf of the beneficiary named in the registration if the beneficiary is selected. Therefore, DHS expects each prospective petitioner to know and be able to provide the relevant equivalent wage level and SOC code when submitting a registration.
38 While wage levels on many registrations are likely to be based on the OEWS prevailing wage, in some circumstances (as discussed in this proposed rule), the registrant would derive the appropriate wage level based on the provisions of this rule. For example, where the prevailing wage is based on a private wage survey and lower than OEWS wage level I, the registrant would select level I, or where there is insufficient OEWS wage data, the registrant would derive the appropriate wage level based on the DOL 2009 Prevailing Wage Guidance.
39 The proffered wage is the wage that the employer intends to pay the beneficiary. On the LCA, the proffered wage is the “wage rate paid to nonimmigrant workers.” DOL, ETA, Form ETA-9035 and ETA-9035E, Labor Condition Application for Nonimmigrant Workers, Item F.a.10 (expires Oct. 31, 2027), https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/Form%20ETA-9035_exp%2010.31.2027.pdf .
For registrants relying on a prevailing wage that is not based on the OEWS survey, if the proffered wage were less than the corresponding level I OEWS wage, the registrant would select the “wage level I” box on the registration form. See proposed 8 CFR 214.2(h)(8)(iii)(A)( 4 )( i ). If the proffered wage is expressed as a range, the registrant would select the OEWS wage level that the lowest wage in the range will equal or exceed. This helps ensure fairness and prevents employers from artificially inflating a beneficiary's selection odds. If the H-1B beneficiary would work in multiple locations, or in multiple positions if the registrant is an agent, the registrant would select the box for the lowest equivalent wage level among the corresponding wage levels for each of those locations or each of those positions and would list the location corresponding to that lowest equivalent wage level as the area of intended employment. 40 Id. For example, if the beneficiary would work as a software developer (SOC code 15-1252) with a proffered wage of $175,000 in both Sacramento, California, where such wage exceeds wage level IV, and San Francisco, California, where the highest level that such wage meets or 41 The proposal to require a registrant to select the lowest among the corresponding wage levels if a beneficiary would work in multiple locations, or in multiple positions if the registrant is an agent, is meant to prevent gaming of the weighted selection process. This removes a potential incentive to inflate wage levels through strategic location or position choices and helps ensure integrity of the selection process. 42
40 Providing the area of intended employment that corresponds to the lowest equivalent wage level at registration would not preclude the registrant, if selected and eligible to file a petition, from listing any additional concurrent work location(s) on the petition.
41 See DOL, “OFLC Wage Search,” Software Developer, Sacramento, CA, https://flag.dol.gov/wage-data/wage-search (last visited Apr. 11, 2025); DOL, “OFLC Wage Search,” Software Developer, San Francisco, CA, https://flag.dol.gov/wage-data/wage-search (last visited Apr. 11, 2025).
42 For instance, in the case of multiple positions, if DHS were to instead require registrants to select the box for the highest corresponding OEWS wage level that the proffered wage were to equal or exceed, then a petitioner could place the beneficiary in a lower paying position for most of the time and a higher paying position for only a small percent of the time, but use that higher paying position to increase their chances of being selected in the registration process. Similarly, in the case of multiple locations, a petitioner could place the beneficiary in a higher paying locality for only a small percent of time but use that higher paying locality to increase their chances of being selected in the registration process.
DHS recognizes that some occupations do not have current OEWS prevailing wage information available on DOL's Office of Foreign Labor Certification (OFLC) Wage Search website. 43 In the limited instance where there is no current OEWS prevailing wage information for the proffered position, such that there are not four wage levels for the occupational classification or there are not wage data for the area of intended employment, the registrant would follow DOL guidance on PWDs to determine which OEWS wage level to select on the registration. 44 DHS expects each registrant would be able to identify the appropriate SOC code for the proffered position because all petitioners are required to identify the appropriate SOC code for the proffered position on the LCA, even when there are no applicable wage level data available or the OEWS survey is not used as the prevailing wage source on the LCA. Using the SOC code and the previously mentioned DOL guidance, all registrants would be able to determine the appropriate OEWS wage level for purposes of completing the registration, regardless of whether they were to specify an OEWS wage level or utilize the OEWS program as the prevailing wage source on an LCA.
43 OFLC, a component of DOL, administers the OFLC Wage Search for OEWS prevailing wage information at https://flag.dol.gov/wage-data/wage-search (last visited Apr. 11, 2025).
44 DOL, ETA, “Prevailing Wage Determination Policy Guidance: Nonagricultural Immigration Programs” (revised Nov. 2009), https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/NPWHC_Guidance_Revised_11_2009.pdf .
The information required for the registration process provided in proposed 8 CFR 214.2(h)(8)(iii)(A)( 4 )( i ) would also be collected on the petition, regardless of whether USCIS suspends the registration requirement. Specifically, in accordance with form instructions each petitioner would be required to select the highest OEWS wage level on the petition that the beneficiary's proffered wage generally equals or exceeds for the relevant SOC code in the area(s) of intended employment. See proposed 8 CFR 214.2(h)(8)(iv)(B). If the beneficiary's proffered wage is lower than OEWS wage level I, because it is based on a prevailing wage from another legitimate source (other than OEWS) or an independent authoritative source, the petitioner must select “wage level I.” Id. If the beneficiary will work in multiple locations, or in multiple positions if the petitioner is an agent, the petitioner must select the lowest corresponding OEWS wage level that the beneficiary's proffered wage will equal or exceed. Id. Where there is no current OEWS prevailing wage information for the beneficiary's proffered position, the petitioner must select the appropriate wage level that corresponds to the requirements of the beneficiary's proffered position using DOL's prevailing wage guidance. Id. The petitioner must also provide the SOC code of the proffered position in accordance with form instructions. The OEWS wage level selected on the petition must reflect the corresponding OEWS wage level as of the date that the registration underlying the petition was submitted. However, if the registration process is suspended, the OEWS wage level selected must reflect the corresponding OEWS wage level as of the date that the petition is submitted. Petitioners must submit evidence of the basis of the wage level selected on the registration as of the date that the registration underlying the petition was submitted, or, in the case of suspended registration, as of the date the petition is submitted. Such evidence could include, but is not limited to, a printout from the DOL OFLC Wage Search website for the beneficiary's SOC code and area(s) of intended employment as of the relevant date.
B. Process for Weighting and Selecting Registrations
With regard to selection of unique beneficiaries and the registrations submitted on their behalf, because the beneficiary-centric selection process is needed to prevent unscrupulous actors from unfairly increasing the odds that a beneficiary would be selected, DHS proposes to implement a wage-based selection process that would operate in conjunction with the existing beneficiary-centric selection process. Under this process the number of registrations submitted on a beneficiary's behalf does not impact his or her chance of being selected. See proposed 8 CFR 214.2(h)(8)(iii)(A)( 4 ).
Specifically, USCIS would continue to count registrations based on the number of unique beneficiaries who are registered. See proposed 8 CFR 214.2(h)(8)(iii)(A)( 4 ). When a random selection of registrations is necessary, DHS proposes that USCIS would enter each unique beneficiary into the selection pool in a weighted manner based on an assigned OEWS wage level. USCIS would assign each unique beneficiary an OEWS wage level based on the lowest OEWS wage level among all registrations submitted on the beneficiary's behalf. See proposed 8 CFR 214.2(h)(8)(iii)(A)( 4 )( ii ). Under this provision, where only one registration is submitted on a beneficiary's behalf, USCIS would assign the beneficiary to the OEWS wage level entered by the registrant in accordance with the form instructions. See proposed 8 CFR 214.2(h)(8)(iii)(A)( 4 )( i ) and ( ii ). However, for example, a beneficiary for whom a level I registration and a level IV registration have been submitted would be assigned to wage level I for the purpose of weighted selection. The proposal to assign the beneficiary to the lowest OEWS wage level among all of the registrations submitted on his or her behalf is intended to remove an incentive for multiple registrants to submit frivolous registrations with artificially high wage levels in an attempt to unfairly increase a beneficiary's chances of selection. 45
45 For instance, if USCIS were to instead assign a beneficiary to the highest wage level among all the registrations submitted on his or her behalf, or even an average of such wage levels, an unscrupulous employer might have an incentive to work with another entity to submit a frivolous level IV registration on the beneficiary's behalf to increase his or her chance of selection.
If more unique beneficiaries had registrations properly submitted on their behalf during the annual initial registration period than projected as needed to reach the applicable numerical allocation, USCIS would See proposed 8 CFR 214.2(h)(8)(iii)(A)( 4 )( ii ) and (5)( ii ). The random selection would be computer-generated and would only select a unique beneficiary one time, regardless of how many registrations were submitted for that beneficiary or how many times the beneficiary is entered in the selection pool.
During an annual initial registration period that will last a minimum of 14 calendar days (and start at least 14 calendar days before the earliest date on which H-1B cap-subject petitions may be filed for a particular fiscal year), if there are fewer unique beneficiaries with properly submitted registrations on their behalf than projected to reach the regular cap, USCIS would select all registrations properly submitted. This would be regardless of the wage level. USCIS would thereafter continue to accept registrations until it determined a final registration date to ensure a sufficient number of unique beneficiaries projected to reach the regular cap. See proposed 8 CFR 214.2(h)(8)(iii)(A)( 5 )( i ). If more unique beneficiaries had registrations properly submitted on their behalf on the final registration date than needed to reach the regular cap, USCIS would select unique beneficiaries from among those registrations properly submitted on the final registration date in a weighted manner based on the beneficiary's assigned wage level as described previously. Id.
Thereafter, USCIS would complete the same weighting and selection process to meet the advanced degree exemption. If a sufficient number of unique beneficiaries had registrations properly submitted on their behalf during the annual initial registration period than projected as needed to reach the advanced degree exemption, USCIS would select unique beneficiaries who are eligible for the advanced degree exemption in a weighted manner on the basis of the beneficiary's assigned wage level. See proposed 8 CFR 214.2(h)(8)(iii)(A)( 6 )( ii ). During the annual initial registration period, if fewer unique beneficiaries had registrations properly submitted on their behalf than projected as needed to reach the advanced degree exemption, USCIS would select all registrations properly submitted during the annual initial registration period, regardless of wage level, and would continue to accept registrations until it were to determine a final registration date based on the submission of registrations for a sufficient number for unique beneficiaries to reach the advanced degree exemption. See proposed 8 CFR 214.2(h)(8)(iii)(A)( 6 )( i ). If more unique beneficiaries had registrations properly submitted on their behalf on the final registration date than are needed to reach the advanced degree exemption, USCIS would select unique beneficiaries from among those registrations properly submitted on the final registration date in a weighted manner based on the beneficiary's assigned wage level as described previously. Id.
If a beneficiary is selected, each registrant that properly submitted a registration on that beneficiary's behalf would be notified of the beneficiary's selection and would be eligible to file a petition on that beneficiary's behalf during the applicable petition filing period. See proposed 8 CFR 214.2(h)(8)(iii)(A)( 4 ).
C. Process for Selecting Petitions in the Event of Suspended Registration
With regard to petition selection if the electronic registration process were suspended, DHS proposes that USCIS would assign each petition to the equivalent OEWS wage level selected in accordance with form instructions. See proposed 8 CFR 214.2(h)(8)(iv)(B). In the event of suspended registration, if more petitions are received on the final receipt date than projected as needed to reach the applicable numerical limitation, USCIS would weight and select the petitions received as follows: a petition assigned to wage level IV would be entered into the selection pool four times, a petition assigned to wage level III would be entered into the selection pool three times, a petition assigned to wage level II would be entered into the selection pool two times, and a petition assigned to wage level I would be entered into the selection pool one time. See proposed 8 CFR 214.2(h)(8)(iv)(B)( 1 ) and ( 2 ).
D. H-1B Cap-Subject Petition Filing Following Registration
Unless registration is suspended, a petitioner would be eligible to file an H-1B petition for a beneficiary who may be counted under section 214(g)(1)(A) of the Act, or eligible for exemption under section 214(g)(5)(C) of the Act, only if the petition is based on a valid selected registration. See proposed 8 CFR 214.2(h)(8)(iii)(D)( 1 ). An H-1B petition filed on behalf of a beneficiary would have to contain and be supported by the same identifying information and position information, including SOC code, provided in the selected registration and indicated on the LCA used to support the petition. Id. Such petition would also have to include a proffered wage that equals or exceeds the prevailing wage for the corresponding OEWS wage level in the registration for the SOC code in the area(s) of intended employment. 46 Id. DHS recognizes that a beneficiary may have multiple work locations. While the electronic registration would require the registrant to list only one work location—specifically, the work location corresponding to the lowest equivalent wage level as the area of intended employment—the petition would have to list all addresses where the beneficiary will work. If the area of intended employment provided in the registration is not listed in the petition, USCIS may, in its discretion, determine that a change in the area(s) of intended employment would be permissible, provided such change is consistent with a bona fide job offer at the time of registration, as discussed in greater detail later in this preamble.
46 In circumstances where the prevailing wage is based on a private wage survey and is lower than level I, the proffered wage on the H-1B petition would need to equal or exceed the prevailing wage reflected in the private survey used by the registrant to register the beneficiary at OEWS level I.
E. Process Integrity
As is currently required, the entity submitting a registration and/or petition would be required to certify the veracity of the contents of such submissions. If USCIS were to determine that the statement of facts contained on the registration or petition submission was inaccurate, fraudulent, materially misrepresents any fact, or was not true and correct, USCIS would deny the petition or, if approved, would revoke the petition approval. See 8 CFR 214.2(h)(10)(ii) and (11)(iii)(A)( 2 ). In addition, USCIS would deny (or revoke, if approved) an H-1B cap-subject petition if it were not based on a valid selected registration for the beneficiary named or identified in the petition. See 8 CFR 214.2(h)(10)(ii) and (11)(iii)(A)( 6 ). DHS proposes to revise 8 CFR 214.2(h)(10)(ii) to clarify that a valid registration must represent a bona fide job offer. See proposed 8 CFR 214.2(h)(10)(ii).
As stated previously, the proposed rule would require an H-1B petition filed after registration selection to contain and be supported by the same See proposed 8 CFR 214.2(h)(8)(iii)(D)( 1 ). Such petition must also include a proffered wage that equals or exceeds the prevailing wage for the corresponding OEWS wage level in the registration for the SOC code in the area(s) of intended employment as described in 8 CFR 214.2(h)(8)(iii)(A)( 4 )( i ). See proposed 8 CFR 214.2(h)(8)(iii)(D)( 1 ). These requirements are necessary to prevent unscrupulous actors from entering information at the registration stage to increase their chance of selection without intending to employ the beneficiary under the same terms indicated at registration. DHS also expects that the area of intended employment provided at registration would be reflected as a worksite in the subsequently filed petition. However, recognizing that there are legitimate reasons that an intended work location might change between the time of registration and the time of filing the petition, DHS is proposing that USCIS may, in its discretion, find that a change in the area(s) of intended employment would be permissible, provided such change is consistent with a bona fide job offer at the time of registration. For instance, an employer with multiple offices might decide to place the beneficiary at a different office than originally intended at a wage that equals or exceeds the same equivalent wage level for the new location as that indicated on the registration. See id.
DHS also recognizes that there are legitimate reasons that a petition would list more work locations than the intended work location listed on the registration, namely, when the beneficiary would work in multiple locations or in multiple positions if the registrant is an agent and is required to list the location with the lowest corresponding wage level. Using the earlier example of the beneficiary who would work in both Sacramento, California and San Francisco, California where the registration only listed San Francisco as the area of intended employment but the petition would list both Sacramento, California and San Francisco, California as work locations, USCIS would not consider this to be a “change in the area(s) of intended employment” under proposed 8 CFR 214.2(h)(8)(iii)(D)( 1 ).
Additionally, under the existing registration system, petitioners must already certify that each registration they submit reflects a legitimate job offer, and this rule would revise 8 CFR 214.2(h)(10)(ii) to clarify that a valid registration must represent a bona fide job offer. 47 As such, each registrant should be able to identify the appropriate SOC code and wage level for the proffered position at the registration stage. The requirements enumerated at proposed 8 CFR 214.2(h)(8)(iii)(D)( 1 ) are necessary for program integrity and align with existing job offer requirements.
47 In this context, a “legitimate job offer” and a “bona fide job offer” mean the same thing. DHS proposes to use the phrase “bona fide job offer” to more closely align with the definition of a “United States employer” at 8 CFR 214.2(h)(4)(ii), which requires that the employer have “a bona fide job offer for the beneficiary to work within the United States.”
The proposed rule would also allow USCIS to deny a subsequent new or amended petition filed by the petitioner, or a related entity, on behalf of the same beneficiary if USCIS were to determine that the filing of the new or amended petition was part of the petitioner's attempt to unfairly increase the odds of selection during the registration (or petition, if applicable) selection process, such as by reducing the proffered wage to an amount that would be equivalent to a lower wage level than that indicated on the original registration or petition. See proposed 8 CFR 214.2(h)(10)(iii). In this context, attempting to “unfairly increase the odds of selection” generally refers to attempting to derive the benefit from the increased chance of selection associated with a higher corresponding wage level without having a bona fide job offer at the corresponding wage level selected by the registrant during registration. Additionally, a new or amended petition containing a proffered wage equivalent to a lower wage level than that indicated on the original registration or petition may reveal an attempt to “unfairly increase the odds of selection” or indicate that the registration or petition did not in fact represent a bona fide job offer, which would violate the requirement that a valid registration represents a bona fide job offer. See proposed 8 CFR 214.2(h)(10)(ii).
DHS included the previously referenced example of reducing the proffered wage to an amount that would be equivalent to a lower wage level than that indicated on the original registration or petition in the text of proposed 8 CFR 214.2(h)(10)(iii) for illustrative purposes, but it is not the only scenario that could lead to a determination that a new or amended petition was part of the petitioner's attempt to unfairly increase the odds of selection during the selection process. Similarly, if the new or amended petition included the same proffered wage but changed the work location such that the proffered wage now corresponded to a lower OEWS wage level for the new location than the level indicated on the registration, USCIS could consider that change in determining whether the new or amended petition was part of the petitioner's attempt to unfairly increase the odds of selection. On the other hand, USCIS would not deny a new or amended petition solely on the basis of a different proffered wage or location if the wage continues to meet or exceed the same OEWS wage level as listed on the original petition. USCIS would consider the totality of the circumstances when determining whether to deny a new or amended petition filed in these scenarios.
If the new or amended petition were already approved, the proposed regulation would similarly allow USCIS to revoke approval of such petition on notice if it determines that the filing of the petition is part of the petitioner's (or related entity's) attempt to unfairly increase the odds of selection during the registration or petition selection process, as applicable, such as by reducing the proffered wage to an amount that would be equivalent to a lower wage level than that indicated on the registration, or the original petition if the registration process was suspended. See proposed 8 CFR 214.2(h)(11)(iii)(A)( 8 ). USCIS would not, however, revoke approval solely based on a different proffered wage if that wage meets or exceeds the same corresponding OEWS wage level as listed on the original petition.
Similar to how USCIS considers “related entity” for purposes of the bar on multiple cap-subject H-1B filings under 8 CFR 214.2(h)(2)(i)(G), a “related entity” under proposed 8 CFR 214.2(h)(10)(iii) and (11)(iii)(A) may include a parent company, subsidiary, or affiliate company, but would not be limited to only those companies that are legally related to the petitioner through corporate ownership and control. Some factors relevant to relatedness may include familial ties, proximity of locations, leadership structure, employment history, similar work assignments, and substantially similar supporting documentation. USCIS would consider the totality of the circumstances when determining whether a new or subsequent petitioner is a “related entity.” 48
48 See USCIS, Policy Memorandum, PM-602-0159, Matter of S- Inc., Adopted Decision 2018-02 (AAO Mar. 23, 2018).
F. Severability
DHS is proposing that the provisions of this rule be severable from one another as well as severable from the registration requirement more broadly and the beneficiary-centric selection methodology. Should DHS issue a final rule based on this proposed rule, and after any such rule goes into effect, if any of the revisions of that final rule to provisions in 8 CFR 214.2(h)(8), (10), and (11) are found to be invalid or unenforceable by their terms or as applied to any person or circumstance, DHS intends that they should nevertheless be construed so as to continue to give the maximum effect to the provision(s) permitted by law, unless any such provision is held to be wholly invalid and unenforceable, in which event the revision(s) should be severed from the remainder of the provisions and the holding should not affect the other provisions or the application of those other provisions. For instance, the rule's provisions for weighting and selecting registrations are intended to be severable from the rule's provisions for weighting and selecting petitions. For example, if the rule is finalized as proposed, and the provisions pertaining to weighted selection of petitions (if the registration process is suspended) are enjoined or vacated, DHS intends for those provisions to be severable, to the greatest extent possible, from the provisions pertaining to weighted selection of registrations. Because these are alternative methods of selection, depending on whether registration is required or the registration process is suspended, the provisions pertaining to weighted selection of registrations can and would be administered independently from the provisions pertaining to weighted selection of petitions. Similarly, this rule's provisions for weighting and selecting registrations and petitions (as applicable) are intended to be severable from existing regulations on H-1B registration generally and beneficiary-centric registration in particular.
Although DHS does not propose to codify a severability clause in the regulatory text, the Department wishes to emphasize its intent for the provisions of this rule to be severable. The absence of codified severability language is solely to avoid potential confusion within 8 CFR 214.2, which governs a wide range of nonimmigrant classifications beyond the H-1B program and already contains multiple other severability provisions. The absence of a proposed severability provision in the regulatory text associated with this rulemaking is intended to maintain regulatory text that is more readable and streamlined, but it should not be taken to suggest that DHS's intent regarding severability is any different here than it would be in connection with a rule containing a severability clause.
IV. Statutory and Regulatory Requirements
A. Executive Orders 12866 (Regulatory Planning and Review), 13563 (Improving Regulation and Regulatory Review), and 14192 (Unleashing Prosperity Through Deregulation)
Executive Orders 12866 (Regulatory Planning and Review) and 13563 (Improving Regulation and Regulatory Review) direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. Executive Order 14192 (Unleashing Prosperity Through Deregulation) directs agencies to significantly reduce the private expenditures required to comply with Federal regulations and provides that “any new incremental costs associated with new regulations shall, to the extent permitted by law, be offset by the elimination of existing costs associated with at least 10 prior regulations.”
This rule has been designated a “significant regulatory action” that is economically significant, under section 3(f)(1) of Executive Order 12866. Accordingly, the rule has been reviewed by the Office of Management and Budget.
This rule is not an Executive Order 14192 regulatory action because it is being issued with respect to an immigration-related function of the United States. The rule's primary direct purpose is to implement or interpret the immigration laws of the United States (as described in INA sec. 101(a)(17), 8 U.S.C. 1101(a)(17)) or any other function performed by the U.S. Federal Government with respect to aliens. See OMB Memorandum M-25-20, “Guidance Implementing Section 3 of Executive Order 14192, titled `Unleashing Prosperity Through Deregulation’ ” (Mar. 26, 2025).
Summary of Changes
As discussed in the preamble, the purpose of this NPRM is to amend DHS regulations governing the process by which 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 implementing a process in which all unique beneficiaries, while still randomly selected, would be weighted generally according to the highest OEWS wage level that the proffered wage equals or exceeds for the relevant SOC code in the area(s) of intended employment. Specifically, USCIS would weight and select each unique beneficiary (or petition, if registration is suspended) as follows: a beneficiary (or petition) assigned to wage level IV would be entered into the selection pool four times, a beneficiary (or petition) assigned to wage level III would be entered into the selection pool three times, a beneficiary (or petition) assigned to wage level II would be entered into the selection pool two times, and a beneficiary (or petition) assigned to wage level I would be entered into the selection pool one time.
For the 10-year implementation period of the rule (FY2026 through FY2035), DHS estimates the annual costs would be about $30 million. DHS estimates the annual net benefits (undiscounted) would be approximately $472 million in FY2026, $974 million in FY2027, $1,476 million in FY2028, and $1,978 million in each year from FY2029 through FY2035. DHS estimates the annualized net benefits of the rule would be about $1,642 million at 3 percent and $1,594 million at 7 percent. DHS estimates the annual transfers (undiscounted) would be approximately $858 million in FY2026, $1,717 million in FY2027, $2,575 million in FY2028, and $3,434 million in each year from FY2029 through FY2035. DHS estimates the annualized transfers of the rule would be about $2,859 million at 3 percent and $2,778 million at 7 percent.
Table 1 provides a detailed summary of estimated quantifiable and unquantifiable impacts of the proposed rule.
Table 1—Summary of Provisions and Impacts of the NPRM Proposed rule provisions Description of the proposed change to provisions Estimated costs/transfers of provisions Estimated benefits of provisions 1. Required Information on the Registration A registrant would be required to select the box for the highest OEWS wage level that the beneficiary's wage generally equals or exceeds and also would be required to provide the SOC code for the proffered position and the area of intended employment that served as the basis for the OEWS wage level indicated on the registration Quantitative: Petitioners— □ DHS estimates proposed costs would be $15 million due to the additional time burden associated with the registration tool. DHS/USCIS— □ None. Qualitative: Petitioners— □ None. DHS/USCIS— □ None. Quantitative: Petitioners— □ None. DHS/USCIS— □ None. Qualitative: Petitioners— □ None. DHS/USCIS— □ Submission of additional wage level information, the SOC code, and area of intended employment on the electronic registration form would allow USCIS to further improve the integrity of the H-1B cap selection processes. 2. Weighting and Selecting Registrations (or petitions if registration is suspended) DHS proposes to implement a wage-based selection process that would operate in conjunction with the existing beneficiary-centric selection process for registrations. When there is random selection USCIS would enter each unique beneficiary (or petition, as applicable) into the selection pool in a weighted manner: a beneficiary (or petition) assigned wage level IV would be entered into the selection pool four times; level III, three times; level II, two times; and level I, one time Quantitative: Petitioners— □ None. DHS/USCIS— □ None. Qualitative: Petitioners— □ None. Transfer: H-1B workers. □ Due to the proposed weighted registration selection process, DHS estimates that $858 million of wages would be transferred from wage level I H-1B workers to higher wage level H-1B workers in FY2026, $1,717 million in FY2027, $2,575 million in FY2028, and $3,434 million in each year from FY2029 through FY2035. This transfer would be a cost to the wage level I H-1B worker who would lose the wage associated with the H-1B registration. This transfer also would be a benefit to the higher wage level H-1B workers who would receive a wage associated with the H-1B registration. Petitioners— □ There would be an unquantifiable trans- Quantitative: Petitioners and H-1B Workers— □ Total benefits of $502 million in FY2026, $1,004 million in FY2027, $1,506 million in FY2028, and $2,008 million in each year from FY2029 through FY2035 estimated in difference of wage paid to the higher wage level H-1B workers. DHS/USCIS— □ By engaging in a wage-level-based weighting of registrations for unique beneficiaries, DHS would better ensure that initial H-1B visas and status grants would more likely go to the higher skilled or higher paid beneficiaries. Facilitating the admission of higher skilled workers “would benefit the economy and increase the United States' competitive edge in attracting the `best and the brightest' in the global labor market,” consistent with the goals of the H-1B program. Qualitative: Petitioners— □ None. DHS/USCIS— □ None. fer from the petitioners who would hire wage level I H-1B workers to the petitioners who would hire workers at higher wage levels. This transfer would be a cost in terms of lost producer surplus to the petitioners who registered at wage level I and were not selected due to the proposed changes. This transfer would be an unquantifiable benefit in terms of gained producer surplus to the petitioners who registered at higher wage levels and got their H-1B registrations selected due to the higher probability of getting selected. □ There would also be an unquantified transfer and benefit from an increase in state and federal payroll taxes paid to the government by the petitioner. DHS/USCIS— □ None. 3. Required Information on the Petition The information required for the registration process would also be collected on the petition. Petitioners would be required to submit evidence of the basis of the wage level selected on the registration as of the date that the registration underlying the petition was submitted Quantitative: Petitioners— □ DHS estimates this proposed cost would be $15 million due to the additional time burden associated with filing the H-1B petition. DHS/USCIS— □ None. Qualitative: Petitioners— □ None. DHS/USCIS— □ None. Quantitative: Petitioners— □ None. DHS/USCIS— □ None. Qualitative: Petitioners— □ None DHS/USCIS— □ Submission of additional information on the petition form (including wage level information and the SOC code), and evidence of the basis of the wage level selected, would allow USCIS to further improve the integrity of the H-1B cap selection and adjudication processes. 4. Process Integrity The proposed rule would require an H-1B petition filed after registration selection to contain and be supported by the same identifying information and position information including OEWS wage level, SOC code, and area of intended employment provided in the selected registration and indicated on the LCA used to support the petition. The proposed rule would also allow USCIS to deny a subsequent new or amended petition or revoke an approved petition if USCIS were to determine that the filing of the new or amended petition was part of the petitioner's attempt to unfairly increase odds of selection during the registration selection process Quantitative: Petitioners— □ None. DHS/USCIS— □ None. Qualitative: Petitioners— □ DHS estimates that the proposed rule could lead to an increase in the number of denials or revocations of H-1B petitions. DHS/USCIS— □ None. Quantitative: Petitioners— □ None. DHS/USCIS— □ None. Qualitative: Petitioners— □ None. DHS/USCIS— □ These proposed changes would lead to improved program integrity for USCIS. In addition to the impacts summarized in Table 1, and as required by OMB Circular A-4, Table 2 presents the prepared accounting statement showing the costs and benefits that would result in this proposed rule. 49
49 OMB, “Circular A-4” (Sept. 17, 2003), trumpwhitehouse.archives.gov/sites/whitehouse.gov/files/omb/circulars/A4/a-4.pdf (last visited Aug. 1, 2025).
Table 2—OMB A-4 Accounting Statement [$ millions, FY 2023 *] Time Period: FY 2026 through FY 2035. Category Primary estimate Minimum estimate Maximum estimate Source citation BENEFITS Annualized Monetized Benefits at 3% $1,672 Regulatory impact analysis (RIA). Annualized Monetized Benefits at 7% $1,625 RIA. Annualized quantified, but unmonetized, benefits N/A RIA. Qualitative (unquantified) Benefits —Submission of additional wage level information, the SOC code, and area of intended employment on the electronic registration form would allow USCIS to further improve the integrity of the H-1B cap selection processes. RIA. —By engaging in a wage-level-based weighting of registrations for unique beneficiaries, DHS would better ensure that initial H-1B visas and status grants would more likely go to the higher skilled or higher paid beneficiaries. Facilitating the admission of higher—skilled workers “would benefit the economy and increase the United States' competitive edge in attracting the `best and the brightest' in the global labor market,” consistent with the goals of the H-1B program. —The increased wages would also provide an increase in payroll taxes paid to the state and federal government. COSTS Annualized monetized costs at 3% $30 RIA. Annualized monetized costs at 7% $30 Annualized quantified, but unmonetized, costs N/A RIA. Qualitative (unquantified) costs —DHS estimates that the proposed rule could lead to an increase in the number of denials or revocations of H-1B petitions. RIA. TRANSFERS Annualized monetized transfers at 3% $2,859 RIA. Annualized monetized transfers at 7% $2,778 RIA. From/To From wage level I H-1B workers and petitioners to wage level II, III, and IV H-1B workers and petitioners. RIA. Annualized unquantified monetized transfers N/A RIA. Qualitative (unquantified) transfers There would be an unquantifiable transfer from the petitioners who would hire wage level I H-1B workers to the petitioners who would hire workers at higher wage levels in terms of producer surplus. This transfer would be a cost in terms of lost producer surplus to the petitioners who registered at wage level I and were not selected due to the proposed changes. This transfer would be an unquantifiable benefit in terms of gained producer surplus to the petitioners who registered at higher wage levels and got their H-1B registrations selected due to the higher probability of getting selected. RIA. From/To From wage level I H-1B petitioners to wage level II, III, and IV H-1B petitioners. RIA. Effects on State, local, or tribal governments N/A RIA. Effects on small businesses DHS estimates that the proposed rule would result in a significant economic impact on 5,193 small entities (30 percent of small entities that filed a cap-subject petition in FY 2024) due to loss of labor. Regulatory Flexibility Act (RFA) analysis. Effects on wages N/A RIA. Effects on growth N/A RIA. * Note that costs are measured in FY 2023 dollars using U.S. Bureau of Labor Statistics (BLS) wages, but benefits and transfers are measured in average of FY 2023 and FY 2024 dollars using filed LCA wages. Background and Population
The H-1B nonimmigrant visa program allows U.S. employers to temporarily hire foreign workers to perform services in a specialty occupation, services related to a DOD cooperative research and development project or coproduction project, or services of distinguished merit and ability in the field of fashion modeling. 50 A specialty occupation is defined as an occupation that requires the (1) theoretical and practical application of a body of highly specialized knowledge and (2) attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum qualification for entry into the occupation in the United States. 51
50 See INA sec. 101(a)(15)(H)(i)(b), 8 U.S.C. 1101(a)(15)(H)(i)(b); Immigration Act of 1990, Public Law 101-649, sec. 222(a)(2), 104 Stat. 4978 (Nov. 29, 1990); 8 CFR 214.2(h).
51 See INA sec. 214(i)(l), 8 U.S.C. 1184(i)(l).
The number of aliens who may be issued initial H-1B visas or otherwise provided initial H-1B nonimmigrant status during any fiscal year has been capped at various levels by Congress over time, with the current numerical limit being 65,000 per fiscal year. 52 Congress has also provided for various exemptions from this annual numerical limit, including an exemption for 20,000 aliens who have earned a master's or higher degree from a U.S. institution of higher education. 53
52 See INA sec. 214(g)(1)(A), 8 U.S.C. 1184(g)(1)(A).
53 See INA sec. 214(g)(5) and (7), 8 U.S.C. 1184(g)(5) and (7). See more detailed information on cap exemptions in Footnote 4.
Under the current regulation, all petitioners seeking to file an H-1B cap-subject petition must first electronically submit a registration for each beneficiary on whose behalf they seek to file an H-1B cap-subject petition, unless USCIS suspends the registration requirement. 54 USCIS monitors the number of H-1B registrations for unique beneficiaries properly submitted during the announced registration period of at least 14 days. At the conclusion of that period, if more registrations for unique beneficiaries are submitted than projected as needed to reach the numerical allocations, USCIS randomly selects from among unique beneficiaries for whom registrations were properly submitted, the number of unique beneficiaries projected as needed to reach the H-1B numerical allocations. 55 Under this random H-1B registration selection process, USCIS first selects from a pool of all unique beneficiaries, including those eligible for the advanced degree exemption. USCIS then selects from the remaining unique beneficiaries a sufficient number projected as needed to reach the advanced degree exemption. A prospective petitioner that properly registered for a beneficiary who is selected is notified of the selection and instructed that the petitioner is eligible to file an H-1B cap-subject petition for the beneficiary named in the selected registration within a filing period that is at least 90 days in duration. 56 When registration is required, a petitioner seeking to file an H-1B cap-subject petition is not eligible to file the petition unless the petition is based on a valid, selected registration for the beneficiary named in the petition. 57
54 See 8 CFR 214.2(h)(8)(iii)(A).
55 See 8 CFR 214.2(h)(8)(iii)(A)( 5 ) and ( 6 ).
56 See 8 CFR 214.2(h)(8)(iii)(D)( 3 ).
57 See 8 CFR 214.2(h)(8)(iii)(A)( 1 ).
In general, prior to filing an H-1B petition, the employer is required to obtain a certified LCA from the DOL. 58 The LCA collects information about the employer and the occupation for the H-1B worker(s). The LCA requires certain attestations from the employer, including, among others, that the employer will pay the H-1B worker(s) at least the required wage. 59
58 See 8 CFR 214.2(h)(4)(i)(B).
59 See 20 CFR 655.731 through 655.735.
This proposed rule would amend DHS regulations concerning the selection of electronic registrations submitted by or on behalf of prospective petitioners seeking to file H-1B cap-subject petitions (or the selection of petitions, if the registration process is suspended), which includes petitions subject to the regular cap and those asserting eligibility for the advanced degree exemption, to allow for
Table 3 shows the number of registrations received for beneficiaries without a qualifying master's degree (Non-master's), and with a qualifying master's degree or above (Master's or higher) for FY 2020 through FY 2024. 60 Table 3 includes the number of unique beneficiaries because DHS implemented a beneficiary-centric selection process for H-1B registrations in FY 2024, which is when USCIS started selecting registrations by unique beneficiary instead of selecting by registration. 89 FR 7456 (Feb. 2, 2024). Based on a 5-year annual average, DHS estimates the annual average receipts of registrations to be 465,523. The 5-year annual average of registrations received for non-master's is 299,935, the 5-year annual average of registrations received for master's or higher is 165,587, and the 5-year annual average of number of unique beneficiaries with eligible registrations is 320,711.
60 The terms “Non-master's” and “Master's or higher” used in this analysis refer to the beneficiary's degree type, not which cap type they were selected under.
Table 3—Form I-129, H-1B Registrations for FY 2020 Through FY 2024 Fiscal year Number of registrations (non-master's + master's or higher) Non-master's Master's or higher Number of unique beneficiaries—with eligible registrations 2020 274,237 148,142 126,095 118,026 2021 308,613 161,820 146,793 235,435 2022 483,927 334,360 149,567 356,633 2023 780,884 529,530 251,354 450,354 2024 479,953 325,825 154,128 443,108 5-Year Total 2,327,614 1,499,677 827,937 1,603,556 5-Year Average 465,523 299,935 165,587 320,711 Source: USCIS OPQ, Benefits Hub, queried 3/2025, TRK #17347. Registrations submitted in each fiscal year are for the beneficiaries to begin work as an H-1B nonimmigrant the following fiscal year. Cap-subject petitions filed in each fiscal year are generally for the beneficiaries to begin work as H-1B nonimmigrants the following fiscal year. Table 4 shows the number of H-1B cap-subject petitions (Form I-129, Petition for Nonimmigrant Worker) received for non-master's and master's or higher as well as historical Form G-28 filings by attorneys or accredited representatives accompanying H-1B cap-subject petitions for FY 2020 through FY 2024. DHS notes that these forms are not mutually exclusive. Based on the 5-year average, DHS estimates 80 percent of H-1B cap-subject petitions would be filed with Form G-28. 61 Although the advanced degree exemption cap is 20,000, there are more petitions for beneficiaries with master's or higher degrees than 20,000 because some beneficiaries with master's or higher degrees are selected during the regular cap selection process. 62
61 Calculation: 75,633 5-Year Average Forms G-28 ÷ 94,900 5-Year Average Form I-129 petitions = 80 percent.
62 See 8 CFR 214.2(h)(8)(iii)(A)( 5 ).
Table 4—H-1B Cap-Subject Petitions Received for FY 2020 Through FY 2024 Fiscal year H-1B cap-subject petitions received (non-master's + master's or higher) Non-master's Master's or higher Number of petitions filed with form G-28 2020 100,498 40,740 59,758 82,099 2021 90,104 40,641 49,463 72,636 2022 94,702 51,046 43,656 74,373 2023 92,830 50,533 42,297 73,751 2024 96,367 48,933 47,434 75,306 5-Year Total 474,501 231,893 242,608 378,165 5-Year Average 94,900 46,379 48,522 75,633 Source: USCIS OPQ, CLAIMS3 and ELIS, queried 3/2025, TRK #17265. Form G-28 data from USCIS OPS, PRD, CLAIMS3 and ELIS, queried 3/2025. In this analysis, DHS uses historical data of both registrations and received petitions to estimate the future registration and petition population. Specifically, DHS uses 5-year averages to estimate the number of registrations and H-1B cap-subject petitions received annually.
Costs, Transfers, and Benefits of the Proposed Rule
Required Information on the Registration
For purposes of the weighting and selection process proposed in this rulemaking, a registrant would be required to select the box for the highest OEWS wage level (“wage level IV,” “wage level III,” “wage level II,” or “wage level I”) that the beneficiary's proffered wage generally equals or exceeds for the relevant SOC code in the area(s) of intended employment. See proposed 8 CFR 214.2(h)(8)(iii)(A)( 4 )( i ). The registrant would also be required to provide the appropriate SOC code of the proffered position and the area of intended employment that served as the basis for the OEWS wage level indicated on the registration, in addition to any other information required on the electronic registration form (and on the H-1B petition) as specified in the registration form instructions.
For registrants relying on a prevailing wage that is not based on the OEWS survey, if the proffered wage were less than the corresponding level I OEWS wage, the registrant would select the “wage level I” box on the registration form. See proposed 8 CFR 214.2(h)(8)(iii)(A)( 4 )( i ). If the proffered wage is expressed as a range, the registrant would select the OEWS wage level that the lowest wage in the range will equal or exceed. If the H-1B beneficiary would work in multiple locations, or in multiple positions if the registrant is an agent, the registrant would select the box for the lowest equivalent wage level among the corresponding wage levels for each of those locations or each of those positions and would list the location corresponding to that lowest equivalent wage level as the area of intended employment. 63 The proposal to require a registrant to select the lowest among the corresponding wage levels if a beneficiary would work in multiple locations, or in multiple positions if the registrant is an agent, is meant to prevent gaming of the weighted selection process. 64
63 Providing the area of intended employment that corresponds to the lowest equivalent wage level at registration would not preclude the registrant, if selected and eligible to file a petition, from listing any additional concurrent work location(s) on the petition.
64 For instance, in the case of multiple positions, if DHS were to instead require registrants to select the box for the highest corresponding OEWS wage level that the proffered wage were to equal or exceed, then a petitioner could place the beneficiary in a lower paying position for most of the time and a higher paying position for only a small percent of the time, but use that higher paying position to increase their chances of being selected in the registration process. Similarly, in the case of multiple locations, a petitioner could place the beneficiary in a higher paying locality for only a small percent of time but use that higher paying locality to increase their chances of being selected in the registration process.
DHS recognizes that some occupations do not have current OEWS prevailing wage information available on DOL's OFLC Wage Search website. 65 In the limited instance where there is no current OEWS prevailing wage information for the proffered position, such that there are not four wage levels for the occupational classification or there are not wage data for the area of intended employment, the registrant would follow DOL guidance on PWDs to determine which OEWS wage level to select on the registration. 66 DHS expects each registrant would be able to identify the appropriate SOC code for the proffered position because all petitioners are required to identify the appropriate SOC code for the proffered position on the LCA, even when there are no applicable wage level data available or the OEWS survey is not used as the prevailing wage source on the LCA. Using the SOC code and the previously mentioned DOL guidance, all registrants would be able to determine the appropriate OEWS wage level for purposes of completing the registration, regardless of whether they were to specify an OEWS wage level or utilize the OEWS program as the prevailing wage source on an LCA.
65 OFLC, a component of DOL, administers the OFLC Wage Search for OEWS prevailing wage information at https://flag.dol.gov/wage-data/wage-search (last visited Apr. 11, 2025).
66 DOL, ETA, “Prevailing Wage Determination Policy Guidance: Nonagricultural Immigration Programs” (revised Nov. 2009), https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/NPWHC_Guidance_Revised_11_2009.pdf .
This proposed change would add additional requirements for registrants. DHS estimates that this change would increase the time burden by 20 minutes for each registration (0.3333 hours) from 36 minutes (0.6 hours) to 56 minutes (0.9333 hours). The proposed change would offer qualitative benefits. Specifically, submission of additional wage level information and the SOC code on both an electronic registration and on Form I-129 would result in the benefit of allowing USCIS to further improve the integrity of the H-1B cap selection and adjudication processes.
Table 5 shows the number of total registrations and estimated total registrations with Form G-28 attached. Based on a 5-year annual average, DHS estimates the annual average registrations are 465,523. The estimated 5-year annual average of registrations with Form G-28 attached is 180,970.
Table 5—Form I-129, H-1B Registrations and Attached Form G-28 for FY 2020 Through FY 2024 Fiscal year Total registrations Total eligible registrations Eligible registrations with Form G-28 Percentage of eligible registrations with Form G-28 Estimated total registrations with Form G-28 * (A) (B) (C) (B/C) (A × B/C) 2020 274,237 269,424 74,356 28 75,684 2021 308,613 301,447 147,350 49 150,853 2022 483,927 474,421 205,335 43 209,449 2023 780,884 758,994 249,579 33 256,777 2024 479,953 470,342 207,634 44 211,877 5-Year Total 2,327,614 2,274,628 884,254 39 904,852 5-Year Average 465,523 454,926 176,851 39 180,970 Source: USCIS OPQ, Benefits Hub, queried 3/2025, TRK #17518. * Estimated Total Registrations with Form G-28 is estimated using the Percentage of Eligible Registrations with Form G-28 and Total Registrations. DHS estimates the opportunity cost of time of gathering and preparing information by multiplying the estimated increased time burden for those submitting an H-1B registration by the compensation rate of a human resources (HR) specialist, in-house lawyer, or outsourced lawyer, respectively.
In order to estimate the opportunity cost of time for completing and submitting an H-1B registration, DHS assumes that a prospective petitioner would use an HR specialist, an in-house lawyer, or an outsourced lawyer to prepare an H-1B registration. 67 DHS uses the mean hourly wage of $36.57 for HR specialists to estimate the opportunity cost of the time for preparing and submitting an H-1B registration. 68 Additionally, DHS uses the mean hourly wage of $84.84 for in-house lawyers to estimate the opportunity cost of the time for preparing and submitting an H-1B registration. 69
67 DHS limited its analysis to HR specialists, in-house lawyers, and outsourced lawyers to present estimated costs. However, DHS understands that not all entities employ individuals with these occupations and, therefore, recognizes equivalent occupations may also prepare and submit these registrations.
68 See BLS, “Occupational Employment and Wage Statistics, Occupational Employment and Wages, May 2023, 13-1071 Human Resources Specialists,” https://www.bls.gov/oes/2023/may/oes131071.htm (last updated Apr. 3, 2024).
69 See DOL, BLS, “Occupational Employment and Wage Statistics, Occupational Employment and Wages, May 2023, 23-1011 Lawyers,” https://www.bls.gov/oes/2023/may/oes231011.htm (last updated Apr. 3, 2024).
DHS accounts for worker benefits when estimating the total costs of compensation by calculating a benefits-to-wage multiplier using the BLS report detailing the average employer costs for employee compensation for all civilian workers in major occupational groups and industries. DHS estimates that the benefits-to-wage multiplier is 1.45 and, therefore, is able to estimate the full opportunity cost per registration, including employee wages and salaries and the full cost of benefits, such as paid leave, insurance, retirement, etc. 70 DHS multiplied the average hourly U.S. wage rate for HR specialists and in-house lawyers by 1.45 to account for the full cost of employee benefits, for a total of $53.03 per hour for an HR specialist 71 and $123.02 per hour for an in-house lawyer. 72 DHS recognizes that a firm may choose, but is not required, to outsource the preparation of these registrations and, therefore, presents two wage rates for lawyers. To determine the full opportunity costs of time if a firm hired an outsourced lawyer, DHS multiplied the average hourly U.S. wage rate for lawyers by 2.5 for a total of $212.10 to approximate an hourly cost for an outsourced lawyer to prepare and submit an H-1B registration. 73
70 The benefits-to-wage multiplier is calculated as follows: (Total Employee Compensation per hour) ÷ (Wages and Salaries per hour) = ($45.42 Total Employee Compensation per hour) ÷ ($31.29 Wages and Salaries per hour) = 1.45158 = 1.45 (rounded). See BLS, Economic News Release, “Employer Costs for Employee Compensation—December 2023,” Table 1. Employer Costs for Employee Compensation by ownership [Dec. 2023], https://www.bls.gov/news.release/archives/ecec_03132024.htm (last updated Mar. 13, 2024). The Employer Costs for Employee Compensation measures the average cost to employers for wages and salaries and benefits per employee hour worked.
71 Calculation: $36.57 × 1.45 = $53.03 total wage rate for HR specialist.
72 Calculation: $84.84 × 1.45 = $123.02 total wage rate for in-house lawyer.
73 Calculation: $84.84 × 2.5 = $212.10 total wage rate for an outsourced lawyer.
The DHS analysis in Exercise of Time-Limited Authority to Increase the Fiscal Year 2018 Numerical Limitation for the H-2B Temporary Nonagricultural Worker Program, 83 FR 24905 (May 31, 2018), used a multiplier of 2.5 to convert in-house attorney wages to the cost of outsourced attorney wages.
The U.S. Immigration and Customs Enforcement rule “Final Small Entity Impact Analysis: `Safe-Harbor Procedures for Employers Who Receive a No-Match Letter'” at G-4 (Aug. 25, 2008), https://www.regulations.gov/document/ICEB-2006-0004-0922, also used a multiplier of 2.5 to convert in-house attorney wages to the cost of outsourced attorney based on information received in public comment to that rule. The methodology used in that analysis remains sound for using 2.5 as a multiplier for outsourced labor wages in this rule.
DHS does not know the exact number of registrants who will choose an in-house or an outsourced lawyer but assumes it may be a 50/50 split and, therefore, provides an average. The estimated number of registrations with Form G-28 attached is 180,970 from Table 5. Table 6 shows the current total annual average cost for a lawyer to complete the registration on behalf of a prospective petitioner. The current opportunity cost of time for submitting an H-1B registration using an attorney or other representative is estimated to range from $13,357,758 to $23,030,242, with an average of $18,194,000.
Table 6—Current Average Opportunity Costs of Time for Submitting an H-1B Registration With an Attorney or Other Representative Population submitting with a lawyer Time burden to complete H-1B registration (hours) Cost of time Total current opportunity cost A B C D = (A × B × C) In-house lawyer 180,970 0.6 $123.02 $13,357,758 Outsourced lawyer 180,970 0.6 212.10 23,030,242 Average 18,194,000 Source: USCIS analysis. To estimate the current remaining opportunity cost of time for an HR specialist submitting an H-1B registration without a lawyer, DHS applies the estimated public reporting time burden (0.6 hours) to the compensation rate of an HR specialist. Table 7 estimates the current total annual opportunity cost of time to HR specialists completing and submitting an H-1B registration would be approximately $9,053,907.
Table 7—Current Average Opportunity Costs of Time for Submitting an H-1B Registration, Without an Attorney or Accredited Representative Population Time burden to complete H-1b registration (hours) HR specialist's opportunity cost of time Total opportunity cost of time A B C D = (A × B × C) Estimate of H-1B Registrations 284,553 0.6 $53.03 $9,053,907 Source: USCIS analysis. Note that 284,553 = 465,523 (number of total registrations)−180,970 (number of registrations filed by lawyers) from Table 5. Table 8 shows the final estimated time burden would increase by 20 minutes (0.3333 hours) to 56 minutes (0.9333 hours) to the eligible population and compensation rates of those who may submit registrations with or without a lawyer due to changes in the instructions, adding clarifying language regarding denying or revoking approved H-1B petitions, adding passport or travel document instructional language, and providing the corresponding wage level, the appropriate SOC code of the proffered position, and the area of intended employment that served as the basis for the OEWS wage level indicated on the registration. DHS does not know the exact number of registrants who would choose an in-house or an outsourced lawyer but assumes it may be a 50/50 split and therefore provides an average. DHS estimates that these current opportunity costs of time for submitting an H-1B registration using an attorney or other representative would range from $20,777,992 to $35,823,542, with an average of $28,300,767.
Table 8—New Opportunity Costs of Time for an H-1B Registration, Registrants Submitting With an Attorney or Other Representative Population of registrants submitting with a lawyer Time burden to complete H-1B registration (hours) Cost of time Total opportunity cost A B C D = (A × B × C) In House Lawyer 180,970 0.9333 $123.02 $20,777,992 Outsourced Lawyer 180,970 0.9333 212.10 35,823,542 Average 28,300,767 Source: USCIS analysis. To estimate the current remaining opportunity cost of time for an HR specialist submitting an H-1B registration without a lawyer, DHS applies the final estimated public reporting time burden (0.9333 hours) to the compensation rate of an HR specialist. Table 9 estimates the current total annual opportunity cost of time to HR specialists completing and submitting the H-1B registration would be approximately $14,083,353.
Table 9—Final Average Opportunity Costs of Time for an H-1B Registration, Submitting Without an Attorney or Accredited Representative Population Time burden to complete H-1B registration (hours) HR specialist's opportunity cost of time ($48.40/hr.) Total opportunity cost of time A B C D = (A × B × C) Estimate H-1B Registration 284,553 0.9333 $53.03 $14,083,353 Source: USCIS analysis. DHS estimates the total additional annual cost for attorneys and HR specialists to complete and submit H-1B registrations would be approximately $15,136,213 as shown in Table 10. This table shows the current total opportunity cost of time to submit an H-1B registration and the final total opportunity cost of time.
Table 10—Total Costs to Complete the H-1B Registration Average Current Opportunity Cost Time for Lawyers to Complete the H-1B Registration $18,194,000 Average Current Opportunity Cost Time for HR Specialist to Complete the H-1B Registration 9,053,907 Total (A) 27,247,907 Average Final Opportunity Cost Time for Lawyers to Complete the H-1B Registration 28,300,767 Average Final Opportunity Cost Time for HR Specialist to Complete the H-1B Registration 14,083,353 Total (B) 42,384,120 Final Additional Opportunity Costs of Time to Complete the H-1B Registration (Total (B) minus Total (A)) 15,136,213 Source: USCIS analysis. Weighting and Selecting Registrations
In the current selection process for H-1B registrations, USCIS randomly selects from among properly submitted registrations the number of unique beneficiaries projected as needed to reach the H-1B numerical allocations. This proposed rule would change the way USCIS selects unique beneficiaries, and the registrations submitted on their behalf for H-1B cap-subject petitions (or petitions, if the registration process is suspended), including those eligible for the advanced degree exemption. As proposed, USCIS would weight and select the registrations for unique beneficiaries (or petitions) received generally on the basis of the highest OEWS wage level that the beneficiary's proffered wage would equal or exceed for the relevant SOC code in the area(s) of intended employment. The proposed changes to weight and select registrations would result in the benefit of increasing the chance that registrations or petitions, as applicable, would be selected for higher paid, and presumably higher skilled or higher-valued, beneficiaries.
Congress has established the limits on certain initial H-1B nonimmigrant visas or status grants each fiscal year not to exceed 65,000 (regular cap) with an annual exemption for those who have earned a qualifying U.S. master's degree or higher from a U.S. institution of higher education not to exceed 20,000 (advanced degree exemption). USCIS monitors the number of H-1B registrations for unique beneficiaries it receives during the announced registration period. At the conclusion of the registration period, USCIS randomly selects from among properly submitted registrations a number of registrations for unique beneficiaries projected as needed to reach the H-1B numerical allocations. Although the allocation of regular cap (65,000) and advanced degree exemption (20,000) are approximately 75 percent and 25 percent respectively, the multiple-stage random selection process results in an increased probability that H-1B beneficiaries with a master's degree or higher will be selected. Table 11 shows the historical numbers of H-1B cap-subject petitions received by wage level and by the beneficiary's degree type for FY 2020 through FY 2024. Based

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Source: Frix Law Library, https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2025-18473. Check the current official text before relying on it. Not legal advice.