[Federal Register Volume 90, Number 245 (Monday, December 29, 2025)]
[Rules and Regulations]
[Pages 60864-60967]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-23853]
[[Page 60863]]
Vol. 90
Monday,
No. 245
December 29, 2025
Part II
Department of Homeland Security
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8 CFR Part 214
Weighted Selection Process for Registrants and Petitioners Seeking To
File Cap-Subject H-1B Petitions; Final Rule
Federal Register / Vol. 90 , No. 245 / Monday, December 29, 2025 /
Rules and Regulations
[[Page 60864]]
DEPARTMENT OF HOMELAND SECURITY
8 CFR Part 214
[CIS No. 2847-26; 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: Final rule.
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SUMMARY: The U.S. Department of Homeland Security (DHS) is amending 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). Through this rule, DHS is implementing a weighted selection
process that will 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. This rule
will be effective in time for the FY 2027 registration season.
DATES: This final rule is effective February 27, 2026.
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. Executive Summary
A. Purpose and Summary of the Regulatory Action
B. Summary of Costs and Benefits
C. No Changes From the Notice of Proposed Rulemaking
D. Implementation
II. Background
A. Legal Authority
B. Background on H-1B Registration
C. Need for Regulatory Reform
III. Response to Public Comments on the Proposed Rule
A. Support for the Rule and DHS Justifications
1. General Support for the Rule
2. Protecting U.S. Workers and Wages
3. Positive Impacts on Entry-Level Workers and Recent Graduates
4. Positive Impacts on International Students and New Graduates
5. Positive Impacts on Companies and the Economy
B. Opposition to the Rule and Policy Objections
1. General Opposition to the Rule
2. Fairness and Equal Opportunity Concerns
3. Negative Impacts on Companies, the Workforce, and the Economy
4. Negative Impacts on National Security
5. Negative Impacts on Entry-Level Workers and Recent Graduates
6. Negative Impacts on Mid-Level Workers
7. Negative Impacts on International Students
8. Negative Impacts on STEM Fields
9. Negative Impacts on Academic Institutions
10. Negative Impacts on the Healthcare Sector
11. Negative Impacts on Rural or Underserved Communities
12. Negative Impacts on Small Businesses, Startups, and
Nonprofits
13. Industry and Occupational Disparities
14. Geographic and Regional Disparities
15. Negative Impacts on Mixed Compensation Models
16. General Concerns on Wage-Based Selection
17. Concerns With the OEWS Program
18. Other Opposition
C. Legal Authority, Basis, and Background
1. Statutory Authority
2. Congressional Intent
3. Previous H-1B Rulemakings and Related Court Cases
4. DHS Background and Justification for the Rule
5. Concerns the Rule Is Arbitrary and Capricious
6. Other Legal Comments
D. Proposed Changes to the Registration Process for H-1B Cap-
Subject Petitions
1. Proposed Weighted Selection Process
2. Required Information From Petitioners
E. Process Integrity
1. Certifying the Contents of the Registration and Consequences
2. Potential Employer Wage Manipulation
3. Consistency Between the Registration and the Petition
4. Potential SOC Code Manipulation
5. Potential Job Location Manipulation
6. Multiple Registrations
7. Related Entities
8. Other Comments Related to Process Integrity
F. Other Issues Relating to the Rule
1. Alternatives to the Proposed Weighting Selection Process
2. Effective Date and Implementation
3. Processing Time Outlook
4. Data and Transparency
5. Comments Related to Presidential Proclamation 10973,
Restriction on Entry of Certain Nonimmigrant Workers (September 19,
2025)
G. Statutory and Regulatory Requirements
1. Administrative Procedure Act (APA)
2. Regulatory Impact Analysis and Benefits (E.O.s 12866 and
13563)
3. Methodology and Adequacy of the Cost-Benefit Analysis
4. Costs
5. Benefits
6. Transfers
7. Paperwork Reduction Act (PRA)
8. Other Regulatory Requirements
H. Out of Scope
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
1. Final Regulatory Flexibility Analysis
C. Congressional Review Act
D. Unfunded Mandates Reform Act of 1995
E. Executive Order 13132 (Federalism)
F. Executive Order 12988 (Civil Justice Reform)
G. Executive Order 13175 (Consultation and Coordination With
Indian Tribal Governments)
H. National Environmental Policy Act
I. Paperwork Reduction Act of 1995
Table of Abbreviations
AI--Artificial Intelligence
APA--Administrative Procedure Act
BLS--U.S. Bureau of Labor Statistics
CBA--collective bargaining agreement
CFR--Code of Federal Regulations
COVID-19--Coronavirus Disease of 2019
CPI-U--Consumer Price Index for All Urban Consumers
CRA--Congressional Review Act
DHS--U.S. Department of Homeland Security
DOW--U.S. Department of War
DOL--U.S. Department of Labor
E.O.--Executive Order
EPA--U.S. Environmental Protection Agency
ETA--Employment and Training Administration
FDNS--Fraud Detection and National Security
FR--Federal Register
FY--Fiscal Year
GDP--gross domestic product
HHS--U.S. Department of Health and Human Services
HR--human resources
HSA--Homeland Security Act of 2002
IIE--Institute of International Education
IMG--International Medical Graduate
INA--Immigration and Nationality Act
IRFA--Initial Regulatory Flexibility Analysis
IRS--U.S. Internal Revenue Service
IT--information technology
LCA--Labor Condition Application
MSA--Metropolitan Statistical Area
NAFSA--National Association of Foreign Student Advisers
NAICS--North American Industry Classification System
NEPA--National Environmental Policy Act
NPRM--notice of proposed rulemaking
OEWS--Occupational Employment and Wage Statistics
OFLC--Office of Foreign Labor Certification
OMB--Office of Management and Budget
OPQ--Office of Performance and Quality
OPT--Optional Practical Training
PRA--Paperwork Reduction Act of 1995
Pub. L.--Public Law
PWD--prevailing wage determination
RFA--Regulatory Flexibility Act of 1980
RIA--regulatory impact analysis
SBA--U.S. Small Business Administration
[[Page 60865]]
SCA--Service Contract Act
Secretary--Secretary of Homeland Security
SOC--Standard Occupational Classification
STEM--Science, Technology, Engineering, and Math
SVP--Specific Vocational Preparation
UMRA--Unfunded Mandates Reform Act 1995
U.S.C.--United States Code
USCIS--U.S. Citizenship and Immigration Services
I. Executive Summary
DHS is amending its regulations governing the H-1B cap selection
process. This final rule implements a weighted selection process that
will 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. This final rule follows a
notice of proposed rulemaking (NPRM) issued on this topic on September
24, 2025, ``Weighted Selection Process for Registrants and Petitioners
Seeking to File Cap-Subject H-1B Petitions,'' 90 FR 45986 (Sept. 24,
2025).
A. Purpose and Summary of the Regulatory Action
The purpose of this rule is to allow DHS 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. This weighted
selection process will 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. Moreover,
it will disincentivize abuse of the H-1B program to fill relatively
lower-paid, lower-skilled positions, which is a significant problem
under the present H-1B program.
Through this rule, DHS is amending the process by which 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) to implement a weighted
selection process generally based on each beneficiary's equivalent wage
level. When random selection is required because USCIS receives more
registrations (or petitions) than USCIS projects to be needed to meet
the numerical allocations, USCIS will 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
will equal or exceed for the relevant Standard Occupational
Classification (SOC) code in the area(s) of intended employment. Under
this process, registrations for unique beneficiaries or petitions will
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 will be entered into the selection
pool four times, those assigned wage level III will 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 will be entered into the selection pool one time. Each unique
beneficiary will 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.
As noted in the NPRM, although DHS is not codifying a severability
clause in the regulatory text, DHS intends for the provisions of this
rule to be severable from one another as well as severable from the
registration requirement more broadly and the beneficiary-centric
selection methodology. 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. See 90 FR at
45996.
B. Summary of Costs and Benefits
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BILLING CODE 9111-97-C
C. No Changes From the Notice of Proposed Rulemaking
Following consideration of all public comments received on the
NPRM, DHS is issuing this final rule as proposed in the NPRM, without
modifications to the regulatory text.
D. Implementation
This rule will be effective in time for the FY 2027 registration
season. The changes in this final rule will apply to all registrations
(or petitions, in the event that registration is suspended), including
those for the advanced degree exemption, submitted on or after the
effective date of the final rule. The treatment of registrations and
petitions filed prior to the effective date of this final rule will be
based on the regulatory requirements in place at the time the
registration or petition, as applicable, is properly submitted. DHS has
determined that this manner of implementation best balances operational
considerations with fairness to the public.
II. Background
A. Legal Authority
The Secretary of Homeland Security (Secretary)'s authority for
these 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
final 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 102 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.\1\ Further authority for these regulatory amendments is
found in:
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\1\ Although several provisions of the INA discussed in this
final rule 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.'').
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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 \2\ . . .
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
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\2\ 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.''
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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.
B. Background on H-1B Registration
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 War (DOW) cooperative research and
development project or coproduction project, or services of
distinguished merit and ability in the field of fashion modeling. 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). 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 sec. 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)(1)(A), 8 U.S.C. 1184(g)(1)(A).
Certain petitions are exempt from the 65,000 numerical limitation.\3\
See INA
[[Page 60870]]
secs. 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).
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\3\ 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).
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To manage the annual cap, USCIS used a random selection process in
years of high demand to determine which petitions were selected toward
the projected number of petitions needed to reach the annual H-1B
numerical allocations. In order to better manage the selection process,
DHS created a registration requirement for H-1B cap-subject petitions,
which was first implemented in 2020 for the FY 2021 cap season. Through
issuance of a final rule in 2019, ``Registration Requirement for
Petitioners Seeking To File H-1B Petitions on Behalf of Cap-Subject
Aliens,'' DHS developed a new way to administer the H-1B cap selection
process to streamline processing and provide overall cost savings to
employers seeking to file H-1B cap-subject petitions. See 84 FR 888
(Jan. 31, 2019). Under the current registration process, prospective
petitioners (also known as registrants) that seek to employ H-1B cap-
subject workers must first submit a registration for each requested
worker. The H-1B selection process is then run on properly submitted
electronic registrations. Only those with valid selected registrations
are eligible to file H-1B cap-subject petitions. 8 CFR
214.2(h)(8)(iii)(A)(1).
In February 2024, DHS implemented a beneficiary-centric selection
process for H-1B registrations to better ensure each beneficiary will
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).
C. Need for Regulatory Reform
Congress provided DHS with the authority to better ensure a fair,
orderly, and efficient allocation of H-1B cap numbers based on reasoned
decision making, including consideration of the overall statutory
scheme and purpose of the classification: the selection of highly
skilled and highly paid nonimmigrants in the United States while
protecting the wages, working conditions, and job opportunities of U.S.
workers. 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.\4\ 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.\5\ 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.'' \6\
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\4\ See H.R. Rep. 101-723(I) (1990), as reprinted in 1990
U.S.C.C.A.N. 6710, 6721.
\5\ 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.' '').
\6\ See H.R. Conf. Rep. 101-955, at 126 (1990), as reprinted in
1990 U.S.C.C.A.N. 6784, 6790-91.
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As noted above, USCIS has used a random selection process in years
of high demand to determine which registrations (or petitions, as
applicable) are selected toward the projected number needed to reach
the annual H-1B numerical allocations. 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.\7\
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\7\ 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.'').
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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,\8\ 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.
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\8\ 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 SCOPS, June
2019. See also Jill H. Wilson, Congressional Research Service,
Temporary Professional Foreign Workers: Background, Trends, and
Policy Issues (June 9, 2022), https://www.congress.gov/crs-product/R47159.
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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 final
rule differs from the wage-based selection rule that DHS proposed and
finalized in 2020 and 2021, respectively.\9\ Although the 2021 H-1B
Selection Final Rule was subsequently vacated \10\ and then
withdrawn,\11\ it would have ranked and selected registrations
generally based on the highest equivalent prevailing wage level, as
opposed to selecting by unique
[[Page 60871]]
beneficiary and assigning a weight to them as in this finalized
selection process. 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). Although
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, DHS 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. Unlike the
2021 H-1B Selection Final Rule, under this final rule, USCIS will
assign a weight to--rather than rank and select--registrations for each
unique beneficiary generally based on the corresponding OEWS wage
level.
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\9\ See ``Modification of Registration Requirement for
Petitioners Seeking To File Cap-Subject H-1B Petitions,'' 85 FR
69236 (Nov. 2, 2020); ``Modification of Registration Requirement for
Petitioners Seeking To File Cap-Subject H-1B Petitions,'' 86 FR 1676
(Jan. 8, 2021).
\10\ See 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).
\11\ 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).
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By engaging in a wage-level based weighting of registrations for
unique beneficiaries, DHS will 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.\12\ Ultimately, this
final rule will incentivize employers to offer higher wages or higher
skilled positions to H-1B workers and disincentivize the existing
widespread use of the H-1B program to fill lower paid or lower skilled
positions, without effectively precluding beneficiaries with lower wage
levels or entry level positions.\13\ 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.\14\
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\12\ 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, 2025), 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: How to Fix High-Skilled Immigration to Maximize American
Interests (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.'').
\13\ 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/.
\14\ 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.'').
---------------------------------------------------------------------------
This rule is consistent with the Presidential Proclamation 10973 of
September 19, 2025, ``Restriction on Entry of Certain Nonimmigrant
Workers'' (``H-1B Proclamation''), which directed the Secretary of
Homeland Security to initiate a rulemaking to prioritize the admission
as nonimmigrants of high-skilled and high-paid aliens, consistent with
INA sections 101, 212, and 214 of the INA, 8 U.S.C. 1101, 1182, and
1184. 90 FR 46027 (Sept. 24, 2025). As noted in the H-1B Proclamation,
the H-1B nonimmigrant visa program was created to bring highly skilled
temporary workers into the United States, but the program has been
deliberately exploited to bring in lower-paid, lower-skilled workers to
the detriment of U.S. workers.\15\ Further, many employers,
particularly employers in certain sectors, have abused the current H-1B
framework to artificially suppress wages, resulting in a
disadvantageous labor market for U.S. citizens, while at the same time
making it more difficult to attract and retain the highest skilled
subset of temporary workers.
---------------------------------------------------------------------------
\15\ Throughout this rule DHS uses the term ``U.S. workers'' but
notes that the Proclamation uses the term ``American workers.'' DHS
considers these terms synonymous for purposes of this rule.
---------------------------------------------------------------------------
DHS believes that the current random selection of registrations (or
petitions, as applicable) has contributed to the systematic abuse of
the H-1B program as described in the H-1B Proclamation. Despite
improvements DHS has made over the years to improve the integrity of
the H-1B registration process and the H-1B program overall, companies
continue to exploit the current legal framework to obtain a pool of
relatively low-wage workers that are detrimental to U.S. workers'
wages, working conditions, and job opportunities. This final rule will
help reverse this trend and help the program meet its original goals of
attracting highly skilled foreign workers while better protecting the
wages, working conditions, and job opportunities of U.S. workers.
III. Response to Public Comments on the Proposed Rule
In response to the proposed rule, DHS received 2,731 comments
during the 30-day period for public comments on the NPRM. DHS received
additional comments related to the associated information collections
during the remainder of the 60-day period for public comments in
accordance with the Paperwork Reduction Act.
Commenters included individuals (including U.S. workers),
companies, law firms, professional organizations, advocacy groups,
nonprofit organizations, universities, healthcare providers, and trade
and business associations. Some commenters expressed support for the
rule or offered suggestions for improvement. Some expressed general
opposition to the rule and some offered alternatives. For some of the
public comments, DHS could not ascertain whether the commenter
supported or opposed the proposed rule.
DHS has reviewed all of the public comments received in response to
the NPRM that were submitted in accordance with the instructions
contained in the NPRM during the comment period. In this final rule,
DHS has responded to public comments relevant to the NPRM and has
addressed the significant issues raised therein. DHS's responses are
grouped by subject area, with a focus on the most common issues and
suggestions raised by commenters.
A. Support for the Rule and DHS Justifications
1. General Support for the Rule
Comment: Multiple commenters expressed general support for the
rule. Other commenters explained their support in general terms that
mentioned: promoting a more merit-based H-1B visa system; expanding
employment options for U.S. citizens; promoting a more highly skilled
workforce; providing an effective mechanism for weighted selection
using wages across different locations; and
[[Page 60872]]
promoting transparency in selection criteria.
Some commenters said the proposed approach would better align with
the H-1B program's purpose by attracting top global talent and/or
supporting innovation and economic growth in the United States while
also reducing wage-based exploitation. Commenters predicted the new
selection process would strengthen the U.S. economy and enhance the
United States' competitiveness.
Multiple commenters stated that the new selection process would
improve program integrity. Commenters generally noted that the wage-
based selection process would improve both the integrity of the
registration program and the H-1B program overall. Some commenters
praised DHS's efforts to protect the registration selection process
against gaming by employers.
Response: DHS agrees that this rule will improve program integrity
and will better ensure that the H-1B cap selection process favors
relatively higher-skilled, higher-valued, or higher-paid foreign
workers, consistent with the congressional intent of helping U.S.
employers hire highly skilled aliens to address gaps in the U.S.
workforce. DHS agrees with the commenters' statements that the weighted
selection process implemented by this rule will expand employment
prospects for U.S. citizens, support innovation, encourage skill
development, reduce wage-based exploitation, promote integrity and
transparency, and help to strengthen the economy. By facilitating the
admission of highly skilled, highly paid H-1B workers, this rule helps
the United States attract more highly skilled workers in the global
labor market, ultimately enhancing U.S. competitiveness.
2. Protecting U.S. Workers and Wages
Comment: Many commenters supported the proposed rule, reasoning
that it would address concerns about the current H-1B program's harmful
effects on U.S. workers. Commenters criticized the wage undercutting
and wage suppression allowed by the current H-1B cap selection process.
Some commenters shared their personal observations about how they,
their colleagues, or U.S. workers have been harmed by companies that
exploit the H-1B program to bring in large numbers of lower-skilled,
lower-paid foreign workers.
Multiple commenters predicted that the new H-1B selection process
would benefit U.S. workers. Commenters emphasized that the skill- and
wage-based selection criteria would promote fairness; discourage
fraudulent practices; encourage prospective beneficiaries to pursue
higher-paying, legitimate employment opportunities; and better
complement the U.S. labor market. Commenters remarked that the new
system would raise wages to more accurately reflect market demand for
needed skills. Another noted the rise of artificial intelligence (AI)
and the need to protect job opportunities for U.S. workers and
graduates. Some commenters remarked that this rule would not only help
U.S. citizens, but also lawful permanent residents and legal immigrant
workers whose job opportunities have been negatively impacted by low-
skill, low-wage H-1B workers.
Many commenters predicted that the new selection process would
encourage the hiring of U.S. workers by disincentivizing information
technology (IT) staffing companies from hiring cheap, foreign labor.
Many commenters said they support efforts to reform the H-1B
registration process and expressed concern about IT consulting
companies that hire lower-skilled, lower-paid foreign workers who
displace U.S. workers. Commenters expressed criticism of the way some
IT staffing companies can misuse or abuse the system, whether through
loopholes or illegal practices. Some commenters cited data showing that
currently 80% of H-1B visas are for workers in wage levels I and II, a
statistic they tied to lower wages in affected industries.
Response: DHS agrees that this rule will reduce problems with the
H-1B program, which companies have been systematically exploiting to
bring in large numbers of lower-skilled, lower-paid foreign workers to
the detriment of U.S. workers. In particular, U.S. workers in computer-
related fields have been significantly harmed by the prominent
manipulation of the H-1B program by IT or outsourcing firms.\16\ This
rule will incentivize employers to use the H-1B program to primarily
fill relatively higher-paid, higher-skilled positions to supplement,
rather than replace, U.S. workers. Prioritizing registrations or
petitions, as applicable, on the basis of equivalent wage levels will
help restore the congressional intent for the program of helping U.S.
employers fill labor shortages in positions requiring highly skilled
and/or highly educated workers.
---------------------------------------------------------------------------
\16\ See ``Restriction on Entry of Certain Nonimmigrant
Workers,'' 90 FR 46027 (Sept. 24, 2025). See also 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 agrees that a decrease in the hiring of lower-paid foreign
labor will encourage U.S. employers to hire available and qualified
U.S. workers, potentially improving the wages, working conditions, and
job opportunities for U.S. workers, particularly for certain positions
and industries that have seen wage suppression or stagnation due to
lower-paid H-1B workers. The weighted selection process finalized in
this rule is expected to result in a marked decrease in registrations
(or petitions, as applicable) being selected for workers who will be
paid a level I corresponding wage, with a greater percentage of total
selected registrations or petitions being for beneficiaries who will be
paid a level III or level IV corresponding wage.
DHS also agrees this rule will benefit lawful permanent residents
and other legal immigrant workers who have been similarly harmed by
lower-paid H-1B workers.
3. Positive Impacts on Entry-Level Workers and Recent Graduates
Comment: Many commenters said that the proposed rule would
alleviate competition and provide more entry-level positions for U.S.
workers. Citing previously published DHS data indicating that the
``number of wage level I petitions will decrease by 10,099 annually,''
a commenter predicted that this decrease would encourage petitioners to
seek out U.S. workers for these entry-level positions. One commenter
predicted that the new rule will positively impact early career
professionals, both U.S. workers and H-1B nonimmigrants, by raising
wages.
Many commenters remarked that this rule would help U.S. college
students and other recent graduates, reasoning that the new selection
process will help increase their chances of gainful employment and
decrease competition against lower-paid foreign workers. Commenters
also specifically noted that the proposed weighted selection process
would offer some improvements for U.S. graduates in science,
technology, engineering, and math (STEM) fields and other U.S. workers
who are just starting out their IT careers. Some commenters noted the
significant challenges faced by current U.S. graduates seeking work in
the IT or STEM fields and stated that this rule would encourage U.S.
students to pursue STEM training and positions.
Response: DHS agrees that this rule will help to better protect the
wages, working conditions, and job opportunities of U.S. workers,
including U.S. college students and recent graduates. Employers that
might have petitioned for cap-subject H-1B workers to fill relatively
lower-paid, lower-
[[Page 60873]]
skilled positions may be incentivized to hire available and qualified
entry-level U.S. workers for those positions as a result of this rule.
DHS also agrees that this rule will offer improvements for U.S.
students and graduates in STEM fields. As stated in the H-1B
Proclamation, abuse of the H-1B program is creating disincentives for
future U.S. workers to choose STEM careers. U.S. college graduates in
some STEM fields are facing high unemployment rates as compared to
graduates with other majors.\17\ 90 FR 46027 (Sept. 24, 2025).
Employers have abused the H-1B program to artificially suppress wages,
resulting in a disadvantageous labor market for U.S. citizens and other
legal workers, particularly in STEM fields. Id.
---------------------------------------------------------------------------
\17\ Federal Reserve Bank of New York, The Labor Market for
Recent College Graduates, https://nyfed.org/collegelabor (last
updated Aug. 1, 2025) (data from 2023).
---------------------------------------------------------------------------
4. Positive Impacts on International Students and New Graduates
Comment: Several commenters expressed appreciation for the proposed
rule, stating that it would be greatly beneficial to international
students and graduates from U.S. universities who are highly skilled or
have job offers at high wage levels. These commenters expressed
frustration at not having been selected in several previous H-1B
registration seasons despite earning level IV wages, saying that their
chances of selection would have been much higher had a wage-based
selection process been in place. A commenter similarly noted that a
weighted selection will be more merit-based and favorable to students
who invested in a U.S. education and have legitimate job offers,
compared to the current random selection process which allows ``many
fake registrations'' that ``distort the odds.'' A commenter said the
new rule would benefit international students graduating with master's
degrees and Ph.D.'s.
Response: DHS agrees that this rule will be greatly beneficial to
international students who are highly skilled and have job offers with
wages that correspond to a higher wage level, as the rule will increase
their chances of being selected in any future H-1B lottery relative to
their chance in the current randomized selection process. DHS agrees
that this rule could be beneficial to aliens who have recently
completed a master's or doctoral program and are seeking to enter the
workforce. For these aliens, this rule will further increase their
chance of being selected in the H-1B lottery relative to their chance
in the current randomized selection process, to the extent that such
aliens secure job offers with salaries that correspond to higher wage
levels. It should also be noted that recent graduates with master's or
higher degrees from U.S. institutions of higher education already
benefit from the existing advanced degree exemption and cap selection
order.
5. Positive Impacts on Companies and the Economy
Comment: Commenters articulated several ways that the proposed rule
would benefit U.S. companies and the economy. For example, a commenter
expressed support for the proposed rule and suggested it would
encourage companies to hire the most qualified person for the job,
which in turn helps companies succeed and improves the country's
economy. Commenters stated that foreign professionals earning higher
wages, in addition to contributing directly to innovation, may add more
to the U.S. economy through gross domestic product (GDP), tax revenue,
innovation output per capita, and consumer spending.
Some commenters mentioned ways this rule would help certain types
of employers. For instance, a few commenters stated that the proposed
rule would help start-ups hire and retain aliens with needed skills,
while the current random selection process results in startups losing
critical employees because most registrations go to other companies
like consulting companies or outsourcing firms. A commenter stated that
high-wage positions typically correspond to roles in cutting-edge
sectors, such as AI, cybersecurity, semiconductor design, and advanced
manufacturing, and stated that this rule would help companies attract
and retain top global talent in these fields. A few commenters said the
new weighted selection process would promote hiring of U.S. workers in
industries key to national security. Another commenter praised the rule
for supporting U.S. workers and said the United States should focus on
educating and developing doctors from within its own population rather
than recruiting doctors from other countries.
Response: DHS agrees that the weighted selection process
implemented by this rule will benefit some U.S. companies by
facilitating the admission of highly skilled, highly paid workers,
attracting the best and brightest in the global labor market. Unlike
the current random selection process, which results in a higher
proportion of lower wage and lower skilled H-1B workers, this rule will
benefit companies of all types, including startups and those in
critical sectors, that are seeking to hire highly skilled workers with
wages that correspond to a higher wage level. These workers are more
likely to spur innovation and help their employers succeed, ultimately
benefiting the U.S. economy, whether directly through taxes paid,
consumer spending, and contributions to corporate earnings, or
indirectly through promoting growth in key industries, including those
related to national security. Finally, DHS agrees that the new weighted
selection process will help to better protect the wages, working
conditions, and job opportunities for U.S. workers, including those in
medicine and health-related fields.
B. Opposition to the Rule and Policy Objections
1. General Opposition to the Rule
Comment: Some commenters opposed the rule based on general policy
concerns, stating that the rule would, for example, be unfair, produce
uncertainty for businesses, reduce diversity and inclusiveness in the
workplace, and ``undermine[ ] the principles of equal opportunity that
should guide immigration policy.'' Other commenters generally asserted
that the rule would weaken American competitiveness or harm innovation
in the United States. Other commenters generally described the benefits
of the H-1B program (e.g., that it allows companies to invest in
domestic facilities, create additional jobs for U.S. employees, fill
gaps in technical and scientific areas where shortages exist, and hire
foreign workers with specialized skills which complement those of U.S.
workers) and claimed that this rule is not needed.
Response: As discussed in greater detail in response to more
specific comments later in this preamble, DHS disagrees with these
commenters that the rule will result in the asserted harms; moreover,
to the extent that harm may occur in any individual case, DHS believes
that on balance, this approach is more likely to support the purposes
of the H-1B program and the national interest. In addition, DHS
disagrees that the rule is not needed, as it is well documented that
the H-1B program has been deliberately and systematically exploited.
The current random selection process has contributed to the ongoing
exploitation of the H-1B program to benefit certain companies in
certain sectors, while crowding out other companies and legitimate job
seekers who have unsuccessfully sought to participate in
[[Page 60874]]
the H-1B program. As noted in the H-1B Proclamation, the H-1B program
has been deliberately exploited to replace, rather than supplement,
U.S. workers with lower-paid, lower-skilled labor. 90 FR 46027 (Sept.
24, 2025). The large-scale replacement of U.S. workers through systemic
abuse of the program has undermined both our economic and national
security. 90 FR 46027 (Sept. 24, 2025). These results are contrary to
the purpose of the H-1B program.
2. Fairness and Equal Opportunity Concerns
Comment: Many commenters expressed concerns about the fairness and
equity of the proposed weighted selection process with some commenters
saying the rule goes against U.S. values of opportunity and fairness.
Other commenters stated that the current random selection process,
though imperfect, provides all qualified applicants with an equal
chance regardless of employer size, education level, or industry. The
commenters stated that a weighted selection process would favor larger
corporations, well-funded petitioners, and candidates with advanced
U.S. degrees, unfairly disadvantaging skilled workers with comparable
or greater expertise but different academic or geographic backgrounds.
Another commenter remarked that one of the most echoed sentiments
online is that the wage-weighted rule ``only helps the rich get
richer'' by linking selection chances to salary, which favors those
from privileged backgrounds and high-paying industries. Some commenters
stated that the proposed rule would create a ``pay-to-play'' system.
Another commenter stated that it is not fair that people with talent
but limited resources would be ignored because of this proposal,
questioning when money became the main priority over skills and
potential. Another commenter remarked that companies may ``lowball''
their employees in order to control their spending on H-1B visas,
leading to more unfair treatment. Another commenter stated that the
proposed rule would distort fair competition for labor and would
discourage legitimate participation in the H-1B program.
Response: DHS believes that the ongoing exploitation of the H-1B
program--to the detriment of U.S. workers and legitimate employers and
job seekers who have been crowded out of the program--is contrary to
the principles of fairness and equal opportunity. The current random
selection process is not fair to U.S. workers whose wages may be
adversely affected by an influx of relatively lower-paid H-1B workers,
or to U.S. employers who have sought to petition for foreign workers at
higher OEWS prevailing wage levels and are not selected. Regarding the
concern about employers ``lowballing'' their employees to control costs
on H-1B visas, DHS believes that as a result of this rule employers may
choose to offer a higher wage to a prospective beneficiary whose skill
level they value and who they wish to retain. Additionally, this rule
may offer highly skilled H-1B workers greater leverage in negotiating
for a higher salary, which in turn could encourage competition for
labor among petitioners seeking similarly qualified workers.
DHS does not view the weighted selection process as a ``pay-to-
play'' system, but rather a process that attracts the best and the
brightest, increases the chance of selection for those who will be paid
wages at higher corresponding wage levels, and disincentives
petitioning employers from offering wages at the lower corresponding
wage levels. As stated throughout the NPRM, DHS believes that salary
generally is a reasonable proxy for skill level.\18\ The purpose of
this rule is to implement the numerical cap in a way that will
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. DHS believes this approach
serves congressional intent for the H-1B program more faithfully than
the current random selection process. DHS believes that this rule
appropriately balances the interests of U.S. workers with the interests
of petitioning employers and the alien workers they seek to employ as
H-1B nonimmigrants.
---------------------------------------------------------------------------
\18\ See ``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.'').
---------------------------------------------------------------------------
Comment: Some commenters expressed concern that the proposed
weighted selection process would complicate the registration selection
process by creating uncertainty, complexity, and unfair bias. The
commenters said that the weighting process would make outcomes harder
to understand and undermine trust in the lottery, compared to the
current random lottery which is transparent and simple to understand. A
commenter likewise asserted that a ``fundamental flaw'' with the
proposed rule's approach is that it retains the elements of uncertainty
and randomness, such that someone being offered a $300,000 salary, for
example, would have no certainty of winning the weighted lottery.
Another commenter said that the rule adds uncertainty and makes
workforce planning less predictable, thus making the H-1B program
impractical to use.
Response: DHS disagrees with these commenters that the weighted
selection process creates uncertainty and unpredictability. To the
contrary, this rule will increase certainty and predictability by
increasing the chances that a registration for a highly skilled, highly
paid alien will be selected in the selection process. Under the current
system, the chance that any particular beneficiary is selected in the
lottery is just under 30 percent, regardless of how highly skilled that
beneficiary may be. These low chances of selection increase uncertainty
for all beneficiaries. In contrast, under this final rule the chances
of selection for a beneficiary weighted at a level IV wage will
increase to over 61 percent and a beneficiary weighted at a level III
wage will increase to over 45 percent.
While the final rule retains some degree of uncertainty because it
retains an element of randomness, DHS believes it is important to
retain these aspects of the lottery. As stated in the NPRM, DHS
believes it is optimal to increase the chances of selection for highly
skilled aliens while maintaining the opportunity for employers to
secure H-1B workers at all wage levels.
DHS disagrees that the weighted selection process finalized in this
rule will complicate the H-1B registration selection process or make
outcomes harder to understand. USCIS is fully prepared to implement the
weighted selection process from an operational and technical
perspective in time for the upcoming H-1B cap season. DHS believes that
the public has received sufficient notice of the weighted selection
process and that the parameters of the process have been made clear.
Finally, DHS disagrees that the weighted selection process
undermines trust in the H-1B cap selection process. As previously
described, the prevalent and systematic abuse of the current H-1B
program undermines public trust. DHS believes that the new weighted
selection process will restore trust in the H-1B program by returning
the program to its original intended purpose of helping U.S. employers
fill labor
[[Page 60875]]
shortages in positions requiring highly skilled or highly educated
workers while protecting the wages, working conditions, and job
opportunities of U.S. workers, rather than allowing the continued abuse
of the H-1B program to displace and otherwise harm U.S. workers.
3. Negative Impacts on Companies, the Workforce, and the Economy
Comment: Several commenters asserted that H-1B professionals drive
innovation, productivity growth, and entrepreneurship. Some commenters
addressed the contributions of international students to innovation and
economic growth and said that limiting their job opportunities would
undermine such growth. Other commenters specified that startups and
small businesses are significant drivers of innovation and economic
growth in the United States, and limiting their access to international
talent could stifle such innovation and entrepreneurship. Other
commenters said that innovation and breakthroughs often come from
early-career professionals, startups, and research institutions that
typically cannot compete with the salaries of larger, established
companies. Another commenter stated that startups rely on the H-1B
program to attract talented workers who possess ``niche expertise,''
and that this rule will make the H-1B program more expensive and
difficult to use, and ultimately limit the growth of U.S. tech
innovation and global leadership.
Response: DHS disagrees that the rule will stifle innovation,
economic growth, and global leadership. Rather than limiting access to
international talent, DHS believes that this rule will facilitate
employers of all types and sizes to attract and retain highly skilled
and highly paid aliens. This rule will help the United States to
attract the best and brightest workers by increasing the chance of
selection for highly skilled, highly paid aliens who are more likely to
spur innovation and make significant contributions to their employers
and industry, while also better protecting the wages, working
conditions, and job opportunities of U.S. workers.
Additionally, this rule does not treat people who work for startups
or small-sized entities differently than those who work for other
larger companies. While DHS recognizes that some startups and small
businesses may operate on smaller margins compared to other companies,
if an employer values a beneficiary's work and the unique qualities the
beneficiary possesses, the employer could offer a higher wage than
required by the prevailing wage level to reflect that value. DHS
recognizes that this could result in increased costs for a business,
however, DHS believes that the tradeoff of having a greater chance to
recruit or retain talented employees may offset these increased costs.
If a company is unable to pay an employee a higher wage for a greater
chance of selection, they could then try to find a substitute U.S.
worker. This rule, by weighting selection, allows employers seeking
workers at any wage level to have an opportunity for selection, such
that they are not precluded from participating in the program solely
because they are unable to pay a wage that corresponds to a higher wage
level.
Comment: Commenters claimed that this rule would result in
companies outsourcing more work overseas, directly contrary to the
intent of this rule. Commenters remarked that employers who depend on
entry-level talent would either cut back on hiring or outsource jobs
abroad, reducing job creation within the United States. Some commenters
specifically stated that the proposed rule would result in IT companies
replacing onsite H-1B workers with lower-paid offshore resources, with
some commenters remarking that this would be an additional way to
undercut U.S. workers' wages by paying significantly lower salaries to
offshore employees. A manufacturing association stated that in
industries that cannot meet their labor force needs domestically, if
companies cannot use the H-1B program to address shortages, employers
may be incentivized to move production and workforce positions
offshore. Another commenter noted that their industry will be unable to
substitute lost global talent with U.S. workers who still need training
and education, meaning that changes to the H-1B program will leave
critical positions unfilled, slowing innovation and overall job growth.
This same commenter went on to state that research from the Economic
Innovation Group and George Mason University shows that restrictions on
H-1B visas drives companies to offshore work or expand operations
abroad, undermining the goal of supporting U.S. workers.
Response: DHS disagrees that this rule will cause employers to
outsource more jobs or move operations to other countries. While DHS
acknowledges this rule may impose some costs to individual employers,
the commenters do not address the countervailing impact on those
employers benefited by this rule, including those U.S. employers
offering level III and IV wages that will have higher chances of
selection, or U.S. employers that have historically been squeezed out
of the H-1B lottery that will likely see an increased chance to
participate in the H-1B program. DHS believes that this rule, instead,
will facilitate the admission of higher-skilled workers, which will
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.
DHS is not persuaded that U.S. companies would rather incur the
time and expense to move their operations abroad instead of increasing
their hiring of U.S. workers, particularly for entry level positions
where U.S. workers have been replaced with lower-paid, lower-skilled
foreign labor. DHS believes that U.S. employers are more likely to
change their hiring practices in the United States, rather than
offshoring work abroad, as evidenced by news articles highlighting how
more and more companies have signaled their intent to increase their
investment in America and hire more U.S. workers rather than to rely on
foreign workers.\19\ Likewise, DHS is not persuaded by the research
cited by a commenter concluding that H-1B ``visa restrictions lead to
offshoring.'' \20\ This analysis primarily discussed ``visa
restrictions'' in terms of companies unable to hire H-1B workers due to
the statutory 65,000 visa cap and not because they were not selected
``by pure `luck' of the H-1B lottery process.'' However, this rule does
not restrict the number of H-1B visas available under the statutory
cap, nor does it preclude any company from selection in the H-1B cap
selection process.
---------------------------------------------------------------------------
\19\ See, e.g., The White House, TRUMP EFFECT: A Running List of
New U.S. Investment in President Trump's Second Term (Aug. 15,
2025), https://www.whitehouse.gov/articles/2025/08/trump-effect-a-running-list-of-new-u-s-investment-in-president-trumps-second-term/;
Forbes, International Companies Bet Big On America: A New Wave Of US
Jobs (Mar. 31, 2025), https://www.forbes.com/sites/jackkelly/2025/03/31/international-companies-bet-big-on-america-a-new-wave-of-us-jobs/; Praveen Paramasivam, Reuters, India's Tata Tech to hire more
locals in US as Trump cracks down on immigration (Oct. 22, 2025),
https://www.reuters.com/world/india/indias-tata-tech-hire-more-locals-us-trump-cracks-down-immigration-2025-10-23/; Craig Hale,
Techradar Pro, Meta says it wants to invest $600 billion in US
infrastructure and jobs by 2028 (Nov. 10, 2025), https://www.techradar.com/pro/meta-says-it-wants-to-invest-usd600-billion-in-us-infrastructure-and-jobs-by-2028.
\20\ DHS reviewed the research cited by the commenter from the
Economic Innovation Group and George Mason University entitled,
Unintended Consequences of Restrictions on H-1B Visas (Jan. 28,
2021), https://www.mercatus.org/research/policy-briefs/unintended-consequences-restrictions-h-1b-visas.
---------------------------------------------------------------------------
Comment: Several commenters said large IT companies or outsourcing
firms
[[Page 60876]]
would disproportionately benefit from this rule, as they are more
likely to pay higher wages and could exploit the proposed rule to their
advantage, contrary to the intent of this rule. Commenters remarked
that this approach would unfairly favor large, established corporations
that are able to pay higher salaries, including the large tech
companies that are the predominant users of the H-1B program, with one
commenter claiming that this weighted lottery system ``would exaggerate
their dominance of the program.'' A commenter remarked that IT
companies may end up profiting even more under the proposed rule, while
others said that outsourcing companies would be ``rewarded'' by this
rule and fill positions in areas of ``less critical need.'' A few
commenters claimed that the rule will actually increase the number of
large IT outsourcing companies selected in the lottery, as these
companies generally certify at levels II and III. For instance, a
commenter claimed that ``large IT outsourcers would be awarded 7.4
percent more visas under the proposed rule than under current policy''
while other commenters cited an analysis indicating that large IT
outsourcing firms would receive 8 percent more visas under the rule.
In addition to benefitting large outsourcing companies, a commenter
said that the proposed system would also benefit other H-1B-dependent
employers, even though they pay less than other companies. The
commenter explained that large outsourcers and other H-1B-dependent
employers pay less than other H-1B employers, but they get certified at
higher wage levels because they use H-1Bs for workers in lower-skilled,
lower-paid occupations, and provided an analysis to support this
contention.\21\ This analysis indicated that the rule would increase
the share of selected registrations for H-1B dependent companies by 4
percent.
---------------------------------------------------------------------------
\21\ Jeremy Neufeld, The `Wage Level' Mirage: How DHS's H-1B
Proposal Could Help Outsourcers and Hurt U.S.-Trained Talent, Inst.
for Progress (Sept. 24, 2025), https://ifp.org/the-wage-level-mirage/.
---------------------------------------------------------------------------
Response: DHS disagrees with the assertion that the weighted
selection process will disproportionately benefit large IT or
outsourcing companies and H-1B-dependent employers that use the H-1B
program to fill lower-skilled, lower-paid occupations. Under the new
selection process, registrations or petitions for positions with
salaries that correspond to lower wage levels will have a lower chance
of selection than those with salaries that correspond to higher wage
levels. This will incentivize all H-1B cap-subject employers, including
outsourcing companies and H-1B dependent employers, to offer higher
wages to increase their chances of selection, thereby aligning with the
program's goal of prioritizing highly skilled and highly paid workers.
DHS acknowledges the analysis cited by some commenters that this
rule will likely increase the share of selected registrations from
large IT outsourcers and, to a lesser extent, H-1B dependent employers.
However, this analysis appears to misunderstand the nature of the
weighting process which is generally based on the highest wage level
that the proffered salary would equal or exceed and is not based purely
on Department of Labor (DOL) wage levels. For instance, commenters
cited to a report that says: ``On the surface, this seems like a merit-
based reform: higher wages should mean higher skills. In reality, DOL's
Wage Levels are very different from actual wages. The Wage Level
framework was never designed to compare wages across occupations
because it measures relative seniority within a job category, not
actual pay. There are many workers paid at the highest DOL Wage Level
but making below the median American wage, while some at the lowest DOL
Wage Level are among the best-paid in the economy.'' \22\ This
statement does not acknowledge that the weighted registration process
accounts for the actual salary proffered by employers, which could
correspond to a higher wage level. For registration purposes, the
requirements of the position corresponding to the DOL wage level would
only be relevant if OEWS wage data is not available. But even if this
analysis were reliable, DHS reiterates that the weighted selection
process is not intended to treat any companies or industries better or
worse than others. Again, the goal of this rule is to implement a
weighted selection process that would generally favor the allocation of
H-1B visas to higher-skilled and higher-paid aliens, regardless of
company type or industry.
---------------------------------------------------------------------------
\22\ Jeremy Neufeld, ``The `Wage Level' Mirage: How DHS's H-1B
Proposal Could Help Outsourcers and Hurt U.S.-Trained Talent,''
Inst. for Progress (Sept. 24, 2025), https://ifp.org/the-wage-level-mirage/.
---------------------------------------------------------------------------
Comment: Commenters wrote that the proposed rule would have a
negative impact on the workforce and U.S. economy. Some commenters
stated that the proposed rule would negatively impact the United
States' ability to maintain key talent pipelines, asserting that entry-
level positions are crucial for developing the future workforce and
that removing early-career talent from the workforce pipeline would
harm long-term economic growth. Another commenter remarked that the
United States relies on the contributions of global talent for
innovation, economic growth, and competitiveness.
A few commenters remarked that new or growing companies, which
often hire foreign talent and would be disadvantaged by this rule,
create most new U.S. jobs. One commenter asserted that in the
technology industry, each H-1B request is associated with an increase
of approximately five jobs, while another said that unemployment in
technology fields declined from 3.4 percent to 3 percent over the past
year, even as the number of H-1B workers remained significant. A
commenter pointed out that studies have shown that ``high-skilled
immigration causes large increases in productivity and economic growth
in the United States'' and that U.S. firms employing highly skilled
international graduates are more likely to expand business, research,
and development. Other commenters suggested that high-skilled
immigration generates additional domestic employment opportunities,
reduces unemployment in certain occupations, and complements U.S.
workers rather than replacing them.
Some commenters stated that by making it difficult to hire recent
graduates, the rules would interfere with investment and innovation in
industries that rely on highly skilled entry-level workers to fill
critical roles that cannot be met by the U.S. labor market alone.
Similarly, a commenter said that limiting access to H-1B visas for
early-career professionals would reduce the flow of new ideas,
constrain entrepreneurship, and slow wage growth in high-productivity
sectors. Another commenter stated that the proposed rule would reduce
the diversity of specialty occupations in the U.S. workforce and weaken
innovation. A commenter wrote that instead of benefiting U.S. workers,
the rule would ``hit entry- and mid-level workers the hardest, blocking
young Americans'' from certain jobs.
Response: The goal of this rule is to favor the allocation of H-1B
visas to higher-skilled and higher-paid aliens. DHS believes the
weighted selection process implemented through this rule will best
achieve this goal and disagrees that this rule will have a net negative
impact on the workforce and the U.S. economy. Instead, DHS believes
this rule will incentivize employers to proffer higher wages, or to
petition for positions requiring higher skills and higher-skilled
aliens that are commensurate with higher wage levels,
[[Page 60877]]
thereby attracting the best and the brightest employees and promoting
innovation across all industries and occupations. DHS further believes
that increasing the chance of selection for higher-skilled, higher-paid
aliens will encourage competition and better protect the wages, working
conditions, and job opportunities of U.S. workers.
Regarding the studies and benefits of high-skilled immigration
mentioned by some commenters, DHS acknowledges that high-skilled
immigration in general can be beneficial to companies, the workforce,
and the economy at large. However, these studies and commenters do not
acknowledge the specific problem that this rule addresses, which is the
abuse of the H-1B program to bring in lower-skilled workers in lower-
paid positions. Further, this rule favors the allocation to higher-
skilled aliens but does not alter the numerical limitations, such that
higher-skilled aliens who are selected and ultimately granted H-1B
status may still provide the general benefits that the commenter
alludes to, while better protecting the wages, working conditions and
job opportunities of U.S. workers. DHS does not agree that the rule
will `hit entry and mid-level U.S. workers the hardest' or `block young
Americans' from jobs. The commenter offers no data connecting the
weighted selection process to reduced job opportunities for U.S.
workers. The rule does not change the number of H-1B cap-subject visas.
It does not eliminate lower-wage jobs or employers' ability to hire or
train entry-level workers. Employers must comply with statutory and
regulatory requirements ensuring that H-1B workers do not adversely
affect the wages and working conditions of U.S. workers. The purpose of
the rule is not to raise H-1B wages at the expense of U.S. workers.
Instead, by improving the probability that higher-wage H-1B positions
are selected, the weighted selection process may reduce reliance on
lower wage filings and can help preserve more entry- and mid-level
employment opportunities for U.S. workers.
Comment: Some commenters remarked that negative impacts to U.S.
industries would affect U.S. citizens and young Americans, stating
that: losing access to educators would lead to fewer learning
opportunities for American students; fewer international engineers
would impact mid-sized manufacturers, slowing innovation and hurting
U.S. workers who rely on these jobs; fewer international doctors would
impact healthcare for Americans; disadvantaging startups reduces
opportunities for Americans; disadvantaging justice and public interest
firms that rely on international workers could create inequities in the
justice system, ultimately harming U.S. citizens; disadvantaging
engineers and architects would shut out mid-sized construction
companies, which would slow projects and drive up costs for American
homeowners; and disadvantaging companies involved in supply chain
operations can increase delivery costs and create delays that would
impact American consumers. Another commenter noted that as a U.S.
citizen, they may see fewer employment opportunities if research labs
that depend on international workers downsize because of the proposed
rule. A commenter claimed that the rule would result in costs to the
U.S. economy in terms of U.S. employers not having access to necessary
skills, which would delay productivity and innovation, disrupt delivery
of essential services to the American public, and cause employers to
abandon projects or move the projects overseas. The commenter concluded
that these costs outweigh the benefits of this rule.
Response: DHS disagrees with the commenters' assertions that this
rule will negatively impact U.S. industries, U.S. citizens, and young
Americans. As explained in the other responses throughout this rule,
the weighted selection process would likely have little effect on
certain occupations, such as professors and doctors, since these
occupations are usually cap-exempt or have other immigration pathways
for employment in the United States (such as J-1 or the Conrad 30
program for doctors). Regarding small and mid-size companies and
startups, these employers will be treated the same as all other
employers and have the option to pay any highly sought after
beneficiary a higher wage for a better chance at selection. As for
opportunities for U.S. citizens, DHS disagrees that they will see fewer
employment opportunities at research labs if these labs are not able to
hire as many international workers. Rather, DHS anticipates that if
these companies hire fewer international workers, they may look to fill
such roles with U.S. workers, thereby improving job prospects for U.S.
workers.
With respect to the commenter's assertion that the asserted
economic costs of the rule outweigh the benefits, DHS disagrees with
this commenter. The commenter did not provide data to support the
claimed costs of this rule on the U.S. economy. In addition, this
commenter did not consider the costs to U.S. workers who have been
displaced or denied employment opportunities, or whose wages have been
suppressed, due to the abuse of the H-1B program. Incentivizing
employers to proffer higher wages to aliens seeking H-1B status to
increase their chance of selection would indirectly benefit the wages,
working conditions, and job opportunities of U.S. workers and mitigate
the claimed costs to the U.S. economy that the commenter described.
Comment: Some commenters warned that the proposed rule would create
artificial wage inflation, which harms U.S. workers. The commenters
claimed that the rule would encourage employers to inflate wages and
overpay foreign workers compared to U.S. workers, creating inequity for
U.S. workers performing the same work who are paid less.
Response: This rule does not mandate what wages employers must pay
their employees and does not mandate employers to pay more for their H-
1B workers. Rather, this rule fills in a statutory gap regarding how to
administer the H-1B numerical allocations in years of excess demand and
does so in a manner that will incentivize employers to employ highly
paid, highly skilled workers. Rather than overpaying foreign workers as
compared to U.S. workers, DHS believes that U.S. employers that might
have petitioned for cap-subject H-1B workers to fill relatively lower-
paid, lower-skilled positions may be incentivized to hire available and
qualified U.S. workers for those positions. DHS also believes that an
employer who offers a higher wage than required by the prevailing wage
level only would do so if it was in their economic interest to do so
based on the beneficiary's skill level and relative value to the
employer.
Comment: Many commenters said that the proposed rule would
negatively affect the United States' ability to compete for global
talent. A commenter said that America's competitors focus on attracting
young talent and the proposed rule would limit the United States'
ability to do the same. Several commenters stated that the proposed
rule may cause a ``brain drain'' or ``talent migration'' away from the
United States, including from certain industries. Some commenters
expressed concern that the proposed rule, when viewed alongside other
recent immigration policy changes, will negatively impact U.S.
companies' ability to access, retain, and move talent needed for global
competition, which they said will diminish the country's economic
security, contrary to DHS's statutory mission under the Homeland
Security Act. Some commenters said that the proposed rule could lead
[[Page 60878]]
companies to deprioritize roles in key fields, such as STEM and AI
research.
Response: DHS does not agree that this rule will weaken America's
competitiveness, harm innovation and entrepreneurship, or lead to
``brain drain.'' On the contrary, DHS believes this rule will
strengthen America's competitiveness and innovation by incentivizing
and facilitating the admission and retention of higher-paid, higher-
skilled foreign workers, including those in key fields, such as STEM
and AI research. Under this rule, U.S. employers will have increased
access to more talented, higher-paid foreign workers, thus increasing
innovation and productivity for these employers and contributing to
American competitiveness.
DHS disagrees with the claims that this rule will diminish the
country's economic security and is contrary to DHS's statutory mission
under the Homeland Security Act. As already discussed earlier in this
preamble, the large-scale replacement of U.S. workers through systemic
abuse of the program has undermined both the United States' economic
and national security. By addressing these abuses, this rule supports
the nation's economic and national security and is consistent with
DHS's statutory mission under the Homeland Security Act to ``ensure
that the overall economic security of the United States is not
diminished by efforts, activities, and programs aimed at securing the
homeland.'' HSA sec. 101(b)(1)(F), 6 U.S.C. 111(b)(1)(F).
4. Negative Impacts on National Security
Comment: Some commenters expressed opposition to the proposed rule
on the basis of national security and strategic interests. A commenter
stated that international students account for over half of graduate
enrollments in computer science and engineering in U.S. universities,
fields that directly contribute to advances in AI, cybersecurity,
biotechnology, and semiconductor design--all areas identified by the
Departments of War and Commerce as critical to U.S. national security
and economic resilience. Other commenters stated that the proposed rule
will undermine the global competitiveness of U.S. businesses and
negatively impact the overall economic security of the United States.
One commenter said that international students in key technical and
scientific fields at U.S. universities will be more likely to find
post-graduate employment outside the United States if this rule is
passed, noting that ``competitor countries that recognize the value of
attracting these highly sought-after professionals are strengthening
their analogous programs.'' Another commenter similarly emphasized the
importance of retaining foreign students that pursue in-demand degrees
at U.S. universities, asserting that it is in the national interest
that foreign students completing U.S. graduate degrees apply their
skills to advancing U.S. interests, rather than seeking opportunities
in their home country or another country with more flexible early-
career immigration pathways.
Response: DHS does not believe this rule will disadvantage
prospective beneficiaries contributing to advancements that strengthen
national security or innovation in critical sectors, and the commenters
have not provided evidence that this is likely to occur. A general
correlation between degrees obtained by international students and
fields that contribute to national security does not demonstrate that
this rule will negatively impact critical industries or undermine
national security. Rather, DHS believes this rule will incentivize
employers to proffer higher wages, or to petition for positions
requiring higher skills and higher-skilled aliens that are commensurate
with higher wage levels, thereby attracting the best and the brightest
employees and promoting advancements and innovation across all
industries, including those that are important to national security.
Further, as noted in the H-1B Proclamation, abuses of the H-1B
program present a national security threat by discouraging Americans
from pursuing careers in science and technology, risking American
leadership in these fields. 90 FR 46027 (Sept. 24, 2025). This rule
will help reverse this trend of abuse and help strengthen national
security.
5. Negative Impacts on Entry-Level Workers and Recent Graduates
Comment: Many commenters expressed concern that the proposed
weighted selection process would disproportionately disadvantage recent
graduates and entry-level workers, reducing or eliminating their chance
of selection. One commenter said that the proposed weighted selection
process will penalize early-career, U.S.-educated international talent
because the wage levels measure seniority within an occupation and most
international students are hired at level I or level II wages, and
provided an analysis to support this contention.\23\ Commenters
remarked that most new graduates typically start their careers at level
I wages due to their limited work experience, but many soon become
valuable contributors and leaders and the rule would harm these
graduates' ability to be employed, undermine the ``education-to-
employment pipeline,'' and harm companies' ability to attract qualified
talent in the future. Similarly, some commenters remarked that talent
or value is not always correlated with wage level or years of
experience, but the proposed rule would create a system that rewards
seniority or wage level rather than merit, pushing out the next
generation of early-career innovators and harming the companies that
employ them. One commenter stated it does not make sense to prioritize
older, higher-paid workers who have fewer years left in their career.
Commenters also noted that international graduates already have
difficulty securing an entry-level role due to lack of U.S. work
experience, and the proposed rule would present an additional challenge
that is unfair for aliens who had studied in the United States legally
and would limit career opportunities for these aliens.
---------------------------------------------------------------------------
\23\ Jeremy Neufeld, The `Wage Level' Mirage: How DHS's H-1B
Proposal Could Help Outsourcers and Hurt U.S.-Trained Talent, Inst.
for Progress (Sept. 24, 2025), https://ifp.org/the-wage-level-mirage/.
---------------------------------------------------------------------------
Other commenters wrote that entry-level positions are important and
legitimate roles, not examples of program abuse, and represent the
natural starting point for professional growth. Commenters reasoned
that ``blocking'' level I beneficiaries from the H-1B program
undermines upward mobility and creates an artificial barrier to career
development. Some commenters stated that under the current system,
level I applicants already face low selection odds of approximately 10-
15%, and the proposed weighted system would reduce these chances to
``nearly zero,'' effectively creating what some described as a ``de
facto ban'' on early-career professionals. One commenter said that the
probability of a level I applicant being selected would be reduced by
48 percent, and another commenter said the probability of a level I or
II applicant being selected could decrease to 15 percent.
Some commenters stated that while their companies' starting
salaries for recent graduates are competitive, they cannot compare to
big corporations that can offer high salaries. A commenter stated that
certain industries generate essential public and economic benefits, but
tend to pay less, which does not reflect a lack of skill or potential.
Commenters said that the emphasis on wage-based selection could harm
the
[[Page 60879]]
nation's long-term interests, and that the U.S. economy benefits from
attracting and retaining individuals at all career levels. Another
commenter also emphasized that wage level is not dispositive of an
employee's contribution value and remarked that limiting the amount of
level I and II professionals is not sound economic policy and would
lead to negative impacts greater than any benefit derived from higher
wages paid to level III and IV employees.
Response: DHS disagrees that this rule would be ``blocking'' or
amount to a ``de facto ban'' on all entry-level workers or early-career
professionals, or that their chances of selection would be ``nearly
zero.'' As stated in the NPRM, DHS recognizes the value in maintaining
the opportunity for employers to secure H-1B workers at all wage
levels. In this respect, this rule differs from the selection process
in the 2021 H-1B Selection Final Rule, through which USCIS would have
ranked and selected registrations generally based on the highest
equivalent OEWS 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 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.
Conversely, as noted in Table 13 of the NPRM, DHS projects that through
the weighted selection process implemented by this rule, those with a
level I registration (or petition, as applicable) will have a 15.29-
percent probability of being selected to file a cap-subject petition,
and those with a level II registration (or petition, as applicable)
will have an increased chance of selection as compared to the current
random selection process (30.58% up from 29.59%, respectively). DHS
believes commenters' claims that this rule would result in a de facto
ban or block on early-career professionals are inaccurate and
overstated. For instance, prior to implementation of the beneficiary-
centric selection process, 780,884 total registrations for 85,000
statutorily capped H-1B visas allocated randomly in cap fiscal year
2024 yielded a mere 10.9-percent probability that a foreign student
educated in the United States would ultimately be able to obtain an H-
1B cap-subject visa.\24\
---------------------------------------------------------------------------
\24\ See Historical Data Table from USCIS H-1B Electronic
Registration Process at https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations/h-1b-electronic-registration-process (last updated July 18, 2025).
---------------------------------------------------------------------------
DHS acknowledges that, under this rule, in years of excess demand,
relatively lower-paid or lower-skilled positions will have a reduced
chance of selection. However, this rule maintains the opportunity for
employers to secure H-1B workers at all levels, including recent
graduates or those who are just starting out in their professions.
Additionally, if an employer chooses to offer a recent foreign graduate
a wage that equals or exceeds a particular wage level, the registration
will be weighted accordingly, regardless of the beneficiary's
experience level or the requirements of the position. In fact, this
rule will benefit talented international graduates who are offered
wages at higher levels, as they will have a higher chance of selection
compared to the current random selection process. DHS notes that this
rule does not require any employer to offer higher wages. Rational
employers will not offer wages exceeding the expected value of the
employee's work. To the extent an employer chooses to offer a higher
wage, they are doing so because that higher wage is a clear reflection
of the beneficiary's value to the employer.
With respect to the analysis provided by a commenter about the
``wage level mirage,'' this article appears to misunderstand the nature
of the weighted selection process. The weighting process is generally
based on the beneficiary's equivalent wage level, that is, the highest
wage level that the proffered salary would equal or exceed. The
weighting process specifically allows for consideration of the
proffered salary. Thus, even if a job offer would otherwise be
classified as level I under the OEWS wage level structure for Labor
Condition Application (LCA) purposes based on the requirements of the
position, the beneficiary could still be assigned to a higher
equivalent wage level based on a high salary for registration purposes.
Furthermore, the analysis grouped firms that registered more than 2,000
H-1Bs in FYs 2021, 2022, 2023, or 2024 together as ``outsourcers'' to
argue that ``other companies'' with fewer than 2,000 registrations are
disadvantaged by this rule because they generally register more level I
positions despite paying generally higher salaries. This overlooks the
direct impact of the rule on lottery outcomes of those employers of
more than 2,000 H-1Bs who, like all other companies, will see fewer
level I registrations selected and more level II, III and IV
registrations selected. The comment presents no evidence that these
``outsourcers'' are more likely to register positions for workers
educated outside the United States and neither the comment nor analysis
acknowledges that the referenced cap fiscal years 2021-2024 saw
exponential growth of eligible registrations for beneficiaries with
multiple eligible registrations. Thus, DHS does not find this analysis
persuasive.
To the extent that this rule may disadvantage recent graduates and
entry level alien workers seeking positions corresponding to a lower
wage level, these positions may instead be made available to U.S.
graduates and workers starting out in their careers. This result would
be consistent with the purpose of the H-1B program, which is to help
employers fill labor shortages with highly skilled workers, rather than
as a program for employers to use to replace U.S. workers with lower-
paid, lower-skilled labor. As noted in the H-1B Proclamation,
exploitation of the H-1B program to replace, rather than supplement,
U.S. workers with lower-paid, lower-skilled labor has resulted in a
disadvantageous labor market for U.S. citizens and especially for U.S.
college graduates who are facing higher unemployment rates.\25\ 90 FR
46027 (Sept. 24, 2025).
---------------------------------------------------------------------------
\25\ Federal Reserve Bank of New York, The Labor Market for
Recent College Graduates, https://nyfed.org/collegelabor (last
updated Aug. 1, 2025) (data from 2023).
---------------------------------------------------------------------------
Lastly, DHS disagrees that the rule is not sound economic policy.
This rule will help the United States attract the best and brightest
workers by increasing the chance of selection for highly skilled,
highly paid aliens who are more likely to make significant
contributions to their employers and industry, while also better
protecting the wages, working conditions, and job opportunities of U.S.
workers.
Comment: Some commenters stated that this rule would make it more
difficult for foreign students, recent graduates, trainees,
postdoctoral fellows, and specialists seeking to transition from F-1 to
H-1B status through Optional Practical Training (OPT) or STEM OPT
extensions so that they can enter the workforce and launch their
professional careers. Some commenters stated the proposed rule would
limit career paths available in the United States for recent graduates
and early-career professionals and would disrupt the F-1 to H-1B
pipeline, potentially causing employers to stop hiring students and
terminate OPT participants. A commenter remarked that the uncertainty
of H-1B selection is already a source of instability for these
[[Page 60880]]
individuals and their employers, and the proposed weighted selection
process would further disadvantage those in entry-level and research
positions. A different commenter noted that OPT is a temporary
transitional program and should not be viewed as guaranteed employment
for international students, and without a bridge to H-1B status,
international students would be ``forced to leave'' the United States
despite years of education and contribution. Another commenter noted
that this rule likewise negatively impacts companies who are already
employing aliens as part of the F-1 program, but will not be able to
transition them to the H-1B program. At least one commenter cited an
analysis that found that the proposed selection process would reduce H-
1B visas awarded to F-1 graduates by 7 percent despite these graduates
earning higher salaries on average than other H-1B workers.\26\
---------------------------------------------------------------------------
\26\ For the survey cited by the commenters, see Jeremy Neufeld,
The `Wage Level' Mirage: How DHS's H-1B Proposal Could Help
Outsourcers and Hurt U.S.-Trained Talent, Inst. for Progress (Sept.
24, 2025), https://ifp.org/the-wage-level-mirage/.
---------------------------------------------------------------------------
Response: DHS disagrees. This rule will not preclude F-1 students
in the United States from transitioning from OPT to employment under
the H-1B visa or ``force'' such students to leave. As stated in the
NPRM, DHS recognizes the value in maintaining the opportunity for
employers to secure H-1B workers at all wage levels, including those
employers seeking to hire workers in F-1 status. While this rule
generally may reduce the chance of selection for relatively lower-paid
or lower-skilled positions, it does not create a barrier to being
selected in the H-1B lottery.
Further, this rule has no impact on OPT. To the extent that F-1
students are talented and obtain job offers corresponding to high wage
levels, this rule may facilitate their ability to transition to the H-
1B program.
DHS disagrees with the analysis cited by some commenters about the
impact on international students because this article misunderstands
the nature of the weighted selection process that generally weights
registrations (or petitions, if applicable) based on the highest wage
level that the proffered wage will equal or exceed. For example, one
commenter cites to data showing that ``F-1 students entering the H-1B
process earned higher salaries on average than non-F-1 workers, but
they were far more likely to be placed at the lowest Wage Levels.''
\27\ Under the weighted process finalized by this rule, F-1 students
who earn relatively high salaries may be ranked at higher wage levels
(the wage level that their proffered wage equals or exceeds, if OEWS
wage level data is available for that occupation and area of
employment) and would not be constrained to the ``lowest wage levels''
for registration purposes.
---------------------------------------------------------------------------
\27\ See Jeremy Neufeld, ``The `Wage Level' Mirage: How DHS's H-
1B Proposal Could Help Outsourcers and Hurt U.S.-Trained Talent,''
Inst. for Progress (Sept. 24, 2025), https://ifp.org/the-wage-level-mirage/.
---------------------------------------------------------------------------
Finally, to the extent that this rule does make it more difficult
for some F-1 students seeking lower-skilled, lower-paid positions to
transition to an H-1B visa, it is important to note that the purpose of
the H-1B visa program is not to serve as an early career transition
program for foreign students. Instead, the H-1B program was created to
help U.S. employers fill labor shortages in positions requiring highly
skilled or highly educated workers while protecting the wages, working
conditions, and job opportunities of U.S. workers. The entry-level or
other lower-skilled, lower-paid positions that these F-1 students may
have filled could instead be made available to American students and
recent graduates. DHS believes that this rule appropriately balances
the interests of U.S. workers with the interests of petitioning
employers and the alien workers they seek to employ as H-1B
nonimmigrants.
6. Negative Impacts on Mid-Level Workers
Comment: In addition to negatively impacting entry-level
professionals, some commenters claimed that this rule would also
negatively impact mid-level professionals seeking H-1B visas or status.
For instance, a commenter claimed that a mid-wage level employee would
be disadvantaged by this rule because they would have a lower chance of
selection. A commenter provided an example of a level II professional
who is ``uniquely qualified to lead a critical project involving
cutting-edge technology'' and claimed that the level II wage does not
diminish the employee's value. The commenter concluded that ``limiting
employers' access to foreign talent at the two lower levels is not
sound economic policy.''
Response: DHS disagrees with the assertion that the rule would
disadvantage mid-level professionals earning wages corresponding to
wage levels II and III. Under the weighted selection process, level II
and level III registrations or petitions will still have a reasonable
chance of selection, as outlined in the NPRM. Specifically, as noted in
Table 13 of the NPRM, DHS projects that these groups will have an
increased probability of selection compared to the current random
selection process, with the probability of selection increasing by 3
percent for level II and by 55 percent for level III. As noted
previously, the weighted selection process is designed to incentivize
employers to offer higher wages, which generally correlate with higher
skill levels, while maintaining opportunities for employers to secure
H-1B workers at all wage levels. This approach strikes a balance
between prioritizing highly skilled and highly paid workers and
preserving access to foreign talent across all wage levels.
Comment: A commenter claimed that the proposed rule makes it more
likely that U.S. companies could shift their talent acquisition policy
to favor foreign mid-career to senior-level professionals rather than
focusing on hiring recent international graduates from U.S.
universities.
Response: As noted, the goal of this rule is to incentivize
employers to offer higher wages, or to petition for positions requiring
higher skills and higher-skilled aliens, that are commensurate with
higher wage levels. A U.S. company shifting their talent acquisition
policy to use the H-1B program only for higher-skilled aliens more
advanced in their careers aligns with that goal. If a U.S. company
wishes to focus its talent acquisition policies on hiring recent
graduates, it may focus its search among American graduates.
7. Negative Impacts on International Students
Comment: Many commenters expressed concern about the negative
impact the proposed rule would have on international students who are
studying at U.S. universities. Commenters stated that these students
invest significant time and financial resources to obtain U.S. degrees,
often paying substantially higher tuition than domestic students. Some
commenters stated that the proposed rule would make it more difficult
for these students to secure employment in the United States after
graduation, effectively wasting their investment in U.S. education or
sending the message that their investment and contributions mean little
if they are not also high earners. Another commenter remarked on the
many benefits that recent graduates bring, which help global companies.
Many commenters stated that the proposed rule may cause
international graduates who studied in the United States to relocate to
other countries that actively welcome skilled workers, ultimately
harming the U.S. economy and innovation. Some commenters remarked that
this rule sends a
[[Page 60881]]
discouraging signal to prospective international students, who may
choose to study in other countries with clearer pathways to employment
and immigration. Some commenters noted that because the rule applies to
the 20,000 advanced degree exemption, it will deprive the workforce of
graduates in high-demand fields.
Another commenter said that tighter H-1B policies will cause the
academic profile of international applicants to U.S. schools to worsen,
in that the best students are the ones most likely to be discouraged
from coming to the United States. This commenter also noted that
despite being disproportionately at relatively low wage levels,
international students currently appear to have higher average salaries
than other H-1B visa holders. The commenter noted that the difference
reflects, at least in part, the concentration of petitions for
international students in relatively high-wage occupations and areas.
Response: DHS disagrees that this rule will significantly harm
international students. First, this rule will not impact the ability of
international students to study in the United States, which is the
basis of their admission to the United States in student status. While
the prospect of future H-1B employment may be a factor in deciding
whether to study in the United States, the reputation of the academic
institutions themselves is also an important factor for students
choosing to study in the United States. DHS also disagrees that this
rule will worsen the profile of international students. Conversely, DHS
believes this rule will help attract the best and brightest
international students, to the extent that they will earn relatively
high wages, as they will see their chances of being selected in the H-
1B lottery increase compared to the current random selection process.
As a commenter pointed out, international students appear to have
higher average salaries than other H-1B nonimmigrants, which seems to
suggest that international students will generally benefit from this
rule, contrary to the commenter's claims.
DHS disagrees that this rule will lead U.S.-educated international
students to relocate to other countries. On the contrary, DHS believes
this rule will incentivize and facilitate the admission and retention
of the best and brightest international students. Facilitating the
admission of higher-skilled foreign workers, as indicated by their
earning of wages that equal or exceed higher prevailing wage levels,
will increase the United States' competitive edge in attracting the
``best and the brightest'' students in the global labor market,
consistent with the goals of the H-1B program. DHS also reiterates that
recent graduates with master's or higher degrees from U.S. institutions
of higher education already benefit from the existing advanced degree
exemption and cap selection order.
Comment: Some commenters stated that the proposed rule would
discourage foreign students from studying in the United States, citing
a survey of international graduate students in the United States
conducted by the Institute for Progress and National Association of
Foreign Student Advisers (NAFSA): Association of International
Educators.\28\ Specifically, commenters cited the survey results
finding that 53 percent of international graduate student respondents
would not have enrolled in U.S. universities if ``access to H-1B visas
was determined by wage levels.'' The same survey also found that 48
percent of master's students, 52 percent of Ph.D. students, and 38
percent of postdoctoral respondents, who said they are currently likely
to try to obtain another visa under current rules, would not do so if
access to H-1B visas was determined by wage levels.
---------------------------------------------------------------------------
\28\ The commenters cited the September 15, 2025, survey,
``Surveys on International Talent Pipeline'' conducted by the
Institute for Progress and NAFSA: Association of International
Educators.
---------------------------------------------------------------------------
Response: DHS reviewed the survey results and does not find them
convincing.\29\ In pertinent part, the survey concluded that ``53% of
respondents said they would not have enrolled in the first place if
access to H-1B was determined by Wage Levels.'' However, this rule will
not result in ``access to H-1B [being] determined by Wage Levels.''
Again, this final weighted selection process will maintain the
opportunity for employers to secure H-1B workers at all wage levels and
thus does not preclude ``access'' to the H-1B program. While selection
will be weighted generally based on corresponding wage level, it will
not be ``determined'' by wage levels. This final rule also does not
affect H-1B petitioners who are exempt from the H-1B cap. Similarly,
the relevant survey question asked: ``Think back to your decision to
enroll in a US program. If eligibility to work for a for-profit
employer after graduation were out of reach unless you are compensated
at the highest levels and above the median wage for all Americans
working in your occupation, including those most experienced, how
likely would you have been to enroll in a degree-granting program in
the US?'' The survey question itself was inaccurate. This wage-based
selection rule does not impact eligibility for H-1B classification. It
also does not make selection in the H-1B registration ``out of reach''
as this rule does not create a barrier to getting an entry level job
and being selected in the registration.
---------------------------------------------------------------------------
\29\ DHS reviewed the survey results available at Institute for
Progress and NAFSA: Association of International Educators, Surveys
on International Talent Pipelines (Sept. 15, 2025), https://ifp.org/wp-content/uploads/2025-Surveys-on-International-Talent-Pipelines-1.pdf.
---------------------------------------------------------------------------
Comment: Some commenters discussed how the proposed rule would have
a negative impact on businesses supported by foreign students and
faculty who provide important economic contributions. Some commenters
pointed to data indicating that international students contribute
billions to the U.S. economy through direct spending and support
hundreds of thousands of jobs, stating the rule would be a setback for
those contributions. Some commenters similarly remarked that lower
enrollment of foreign students would mean losing the boost to local
economic activity and jobs that they bring, and would have ``ripple''
or ``cascading'' effects on businesses that support colleges and
universities, including service providers, such as restaurants and
retail stores. One such commenter cited Institute of International
Education (IIE) Open Doors data estimating the contribution of foreign
students to the United States economy to be $44.7 billion from 2018-
2019. Another commenter suggested that in 2026, a 40 percent plunge to
approximately 657,000 students would eviscerate $17.5 billion and
151,000 jobs. A different commenter similarly expressed that NAFSA
reports that international students contribute $43.8 billion to the
U.S. economy and create or support 378,175 jobs.
A commenter said that new international graduates also support the
local economies by paying rent, shopping in local stores, and
volunteering. A different commenter remarked that the proposed rule
will remove the ability of international graduates of U.S. universities
to transition into the workforce, and asserted that the resulting loss
in innovation output, startup formation, and tax generation would be
staggering. The commenter suggested that the cumulative impact could
exceed $1-2 trillion in lost economic productivity. The commenter
expressed that declining international enrollment would create a chain
reaction, causing a collapse in university revenues, layoffs and
program closures, local economic contraction, reduced tax bases, and
weakened national
[[Page 60882]]
competitiveness. Some commenters stated that new international
graduates often are employed outside of major metropolitan areas, and
that businesses in these areas rely on new graduates to support
development, technical workflows, and business growth. Some commenters
remarked that concentrating international students in major cities
would strain infrastructure and increase housing costs.
Response: DHS disagrees with these commenters. Since this rule does
not impact the ability of international students to study in the United
States, it does not take away the economic and other benefits these
international students provide for their local economies and
communities. In addition, DHS disagrees that this rule removes the
ability of international graduates to enter the workforce. While this
rule may disadvantage some recent graduates to the extent that they
have job offers with salaries at relatively lower wage levels, this
rule does not prevent recent graduates on F-1 status from transitioning
to H-1B status. Rather, the rule will 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, without disadvantaging employment opportunities for recent
American graduates in the same or similar fields.
Further, this rule will facilitate the admission of higher-skilled
workers. Facilitating the admission of higher-skilled foreign workers,
as indicated by their earning of wages that equal or exceed higher
prevailing wage levels, is expected to increase the United States'
competitive edge in attracting the ``best and the brightest'' in the
global labor market and benefit the economy. H-1B workers earning
higher wages as a direct result of this rule are likely to increase,
not decrease, many of the economic impacts that were described by
commenters, such as housing or shopping in local stores.
Comments citing Open Doors data and NAFSA analysis provided no
evidence or rationale for their own beliefs that the rule would result
in reduced enrollment and dire cascading effects. DHS again emphasizes
that the weighted-selection mechanism preserves the possibility that
level I registrations will be selected. Open Doors' data on enrollment
trends show total number of international students has grown every year
since 2004/2005 with the exception of temporary declines in 2019/2020
and 2020/2021 due to COVID-19.\30\ DHS notes that this growth in
international students occurred despite decades of generally
diminishing probability of obtaining an H-1B cap-subject visa.\31\ Open
Doors data affirm international students' motivations for studying in
the United States are complex and unlikely to exhibit the sensitivity
commenters speculated would lead to a collapse of this talent and
innovation pipeline.\32\
---------------------------------------------------------------------------
\30\ See IIE Open Doors, International Students, Enrollment
Trends https://opendoorsdata.org/data/international-students/enrollment-trends/ (last visited Nov. 24, 2025).
\31\ In general, the number of H-1B cap-subject petitions
received in the years before registration, and the number of
registrations submitted in the years before the beneficiary centric
selection process, has trended upwards each year whereas the
statutory cap has remained the same at 85,000 per year. See, e.g.,
USCIS, H-1B Registration Process (last updated July 18, 2025),
https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations/h-1b-electronic-registration-process (showing the increasing number of registrations from cap
years FY2021 through FY2024 prior to the beneficiary centric
process); ``Registration Requirement for Petitioners Seeking to File
H-1B Petitions on Behalf of Cap-Subject Aliens'' 84 FR 888, 928
(Jan. 31, 2019) (table 6 showing the generally increasing numbers of
H-1B cap-subject petitions received from cap years FY2013 through
FY2017).
\32\ See Daniel Obst & Joanne Forster, IIE, Country Report: USA,
Perceptions of European Higher Education in Third Countries (2007),
https://www.iie.org/wp-content/uploads/2022/12/International-Students-in-the-US.pdf. Table 10 shows improving chances for an
international career is a strong motivation, but not the only
motivation for studying in the United States. Table 17 shows that
complicated visa procedures/strict requirements were an obstacle to
foreign students planning to remain in the United States, but many
other obstacles are not related to an expectation of H-1B employment
after college.
---------------------------------------------------------------------------
8. Negative Impacts on STEM Fields
Comment: Multiple commenters remarked on negative impacts on
international graduates and workers with degrees in STEM fields as well
as on their employers that depend on them. Many commenters remarked
that recent graduates often bring the most current knowledge in rapidly
evolving fields like AI, clean energy, climate science, public health,
machine learning, semiconductors, bioinformatics, and biotechnology,
and that they play indispensable roles on their teams. Commenters
stated that the rule would lock out entry-level STEM graduates trained
in U.S. universities, wasting U.S. educational investment, and
preventing those graduates from contributing to the U.S. economy.
Commenters remarked that the United States competes for a global talent
pipeline, especially in areas, such as STEM, biotechnology, AI, data
infrastructure, cybersecurity, semiconductors, quantum computing,
advanced manufacturing, and healthcare, and that this rule would
undermine the talent pipeline in these fields. A commenter cited data
that foreign nationals comprise a significant percentage of U.S.
college graduates in STEM fields, and noted that ``U.S. employers
aggressively recruit the top students from U.S. colleges and
universities to fill early career positions that leverage their
skills.'' This commenter similarly concluded that the rule would erode
the pipeline of ``highly educated and talented professionals, of which
foreign students are a critical component pipeline.'' Similarly,
another commenter cited data showing that foreign students represent
the majority of STEM masters and Ph.D. graduates in the United States,
many of which are entering the labor market for the first time.
Commenters also specifically addressed the proposed rule's negative
impact on science and technology more generally, including in AI,
robotics, machine learning, quantum computing, cybersecurity,
electronics design and manufacturing, semiconductor manufacturing,
biotechnology, digital health, automation, and data analytics fields or
industries.
The commenters expressed that their companies and industries rely
on access to global talent through the H-1B program, and that they will
be harmed without access to this talent. Some commenters claimed that
there is not sufficient domestic talent in STEM fields, which is why
they need continued access to the H-1B program. A commenter claimed
that this rule would go against President Trump's efforts to increase
investments in the U.S. semiconductor industry.
Response: DHS disagrees with these commenters. This rule will not
preclude early-career STEM graduates from being selected in the H-1B
lottery. While this rule generally may reduce the chance of selection
for an early-career STEM graduate who is relatively lower-paid, it does
not create a barrier to getting an entry level job and being selected
in the H-1B cap selection process. Additionally, this rule incentivizes
employers to offer a wage that equals or exceeds a higher wage level
for a beneficiary with desirable skills, regardless of the
beneficiary's experience level or the requirements of the position, in
order to increase a beneficiary's chance of selection in the H-1B
lottery. Thus, contrary to commenters' claims, DHS believes this rule
will facilitate the admission and retention of the best and brightest
international students and enhance the talent pipeline in STEM fields.
[[Page 60883]]
To the extent that this rule will disincentivize U.S. companies to
hire fewer low-skilled, low-wage foreign STEM workers, DHS views this
as an overall benefit to U.S. workers. First, these companies could
instead be incentivized to hire qualified U.S. workers to fill STEM
positions, including those U.S. workers who have STEM degrees but are
currently unemployed or underemployed.\33\ As highlighted in the H-1B
Proclamation, a recent study indicated that in 2023, unemployment among
recent computer science and computer engineering graduates was high as
compared to graduates with other majors.\34\ 90 FR 46027 (Sept. 24,
2025). Notably, the abuse of the H-1B visa program has made it even
more challenging for college graduates trying to find IT jobs, allowing
employers to hire foreign workers at a significant discount to U.S.
workers. 90 FR 46027 (Sept. 24, 2025). Observers have written that
there are plenty of qualified U.S. workers with STEM degrees or
pursuing such degrees who are seeking employment in these fields.\35\
---------------------------------------------------------------------------
\33\ See, e.g., Adam Hardy, Money, Recent College Grads are
Discovering That a STEM Degree Doesn't Guarantee a Stable Job (May
30, 2025), https://money.com/college-grads-stem-degrees-unemployed/
(citing data from the Federal Reserve Bank of New York and separate
data from the National Association of Colleges and Employers (NACE)
reflecting declining career prospects for U.S. graduates with
bachelor's degrees in certain STEM majors, including computer/
information sciences and mathematics/statistics); Andrew Mark
Miller, Fox News, `3 headed monster': Expert reveals how H-1B visa
program is crushing American college graduates (Oct. 27, 2025),
https://www.foxnews.com/politics/expert-reveals-3-headed-monster-crushing-american-college-graduates-as-trump-makes-strikes-on-h1b-visas (``unemployment rate for college graduates with those degrees
is significantly higher than the average for all college graduates
and there is a ``concerning'' level of unemployment with college
graduates in IT.'').
\34\ Federal Reserve Bank of New York, The Labor Market for
Recent College Graduates, https://nyfed.org/collegelabor (last
updated Aug. 1, 2025) (data from 2023).
\35\ See, e.g., Ron Hira, Is There Really a STEM Workforce
Shortage? Issues in Science and Technology (Summer 2022), https://issues.org/stem-workforce-shortage-data-hira/ (Unemployment rates
for computer occupations indicates that ``there are too many
educated, experienced STEM workers who are trying to find a job;
there is not a shortage of them.''); Rachel Rosenthal, Bloomberg,
Tech Companies Want You to Believe America Has a Skills Gap But what
they really want is a steady supply of cheap, dependent IT workers
(Aug. 4, 2020), https://www.bloomberg.com/opinion/articles/2020-08-04/big-tech-wants-you-to-believe-america-has-a-skills-gap (``The IT
industry is `awash with supply' and citing data that ``U.S. students
are both interested and capable of doing this kind of work'');
Steven Camarota, Center for Immigration Studies, New data show no
STEM worker shortage (Sept. 17, 2024), https://cis.org/Oped/New-data-show-no-STEM-worker-shortage.
---------------------------------------------------------------------------
Second, companies that have historically relied on a steady pool of
lower-skilled, lower-wage foreign STEM workers could instead be
incentivized to hire highly skilled foreign workers who would be more
likely to supplement, rather than replace, U.S. workers. Many of these
companies are the same companies that have laid off their U.S. workers
and replaced them with low-paid H-1B workers. Again, as highlighted in
the H-1B Proclamation, reports indicate that many U.S. tech companies
have laid off their qualified and highly skilled U.S. workers and
simultaneously hired thousands of H-1B workers.\36\ 90 FR 46027 (Sept.
24, 2025). Information technology firms, in particular, have
prominently manipulated the H-1B system, significantly harming U.S.
workers in computer-related fields. The high numbers of relatively low-
wage workers in the H-1B program undercut the integrity of the program
and are detrimental to U.S. workers' wages and labor opportunities,
especially at the entry level, in industries where such low-paid H-1B
workers are concentrated. In fact, workers in computer related fields
have seen virtually no real wage growth in decades; and real wages for
all types of engineers as well as several other STEM occupations,
including software developers, have stagnated or even declined in the
past decades.\37\
---------------------------------------------------------------------------
\36\ See, e.g., Crunchbase, The Crunchbase Tech Layoffs Tracker
(last updated Nov. 19, 2025), https://news.crunchbase.com/startups/tech-layoffs/; Daniel Costa & Ron Hira, Tech and outsourcing
companies continue to exploit the H-1B visa program at a time of
mass layoffs (Apr. 11, 2023), https://www.epi.org/blog/tech-and-outsourcing-companies-continue-to-exploit-the-h-1b-visa-program-at-a-time-of-mass-layoffs-the-top-30-h-1b-employers-hired-34000-new-h-1b-workers-in-2022-and-laid-off-at-least-85000-workers/; Reuters,
Lawmakers seek answers from major US firms over H-1B visa use amid
layoffs (Sept. 25, 2025), https://www.reuters.com/business/finance/us-lawmakers-scrutinize-tech-firms-over-h-1b-visa-use-amid-other-job-layoffs-wsj-2025-09-25/.
\37\ See, e.g., Ron Hira, Is There Really a STEM Workforce
Shortage? Issues in Science and Technology, (Summer 2022), https://issues.org/stem-workforce-shortage-data-hira/ (``After accounting
for inflation, real wage growth was minimal or negative: real wages
for computer and mathematical occupations declined by 0.4% over the
five-year period [between 2016 and 2021].''); Hal Salzman, Daniel
Kuehn, & B. Lindsay Lowell, Economic Policy Institute, Guestworkers
in the high-skill U.S. labor market (Apr. 24, 2013), https://www.epi.org/publication/bp359-guestworkers-high-skill-labor-market-analysis/ (``Wages have remained flat, with real wages hovering
around their late 1990s levels'' and concluding that ``the United
States has more than a sufficient supply of workers available to
work in STEM occupations.'').
---------------------------------------------------------------------------
9. Negative Impacts on Academic Institutions
Comment: Some commenters expressed concern that the proposed
weighted H-1B selection process would negatively impact U.S.
universities and higher education institutions. Commenters stated that
the rule would reduce the attractiveness of U.S. universities for
international students and undermine the competitiveness of U.S. higher
educational institutions. Commenters stated that international students
provide essential tuition revenue for U.S. universities, which this
rule would threaten. At least one commenter claimed that international
students essentially subsidize domestic students at U.S. colleges and
universities, making it cheaper for U.S.-born students to receive
higher education and cushioning public universities' budgets in the
face of declining state appropriations. Some commenters acknowledged
that U.S. institutions of higher education are exempt from the H-1B
cap, but that the proposed changes to the H-1B selection process would
still have negative, and potentially long-term, effects on U.S. higher
education. A commenter mentioned that the U.S. higher education system
would be destabilized by the proposed rule as it recovers from low
enrollment and financial strain due to the Coronavirus Disease of 2019
(COVID-19) pandemic. Commenters also noted that international students
provide other types of benefits to educational institutions and their
surrounding communities, including exposure to new ideas and cultures.
A commenter referenced a survey conducted by NAFSA estimating a
possible 30 to 40 percent drop in foreign student enrollment for the
2025-2026 academic year, which could have a significant impact on the
U.S. economy.
Response: DHS does not believe that this rule will have a
significant negative impact on the ability of U.S. colleges and
universities to recruit talented international students. To the
contrary, DHS believes this rule is more likely to enhance an academic
institution's ability to attract the best and brightest international
students through offering them an increased chance of H-1B employment
if they secure a job offer at a salary that corresponds to a higher
wage level. To the extent that this change will negatively affect the
ability of some colleges and universities to recruit lower-skilled or
less-experienced international students, DHS believes that any such
harm will be outweighed by the benefits of better ensuring that initial
H-1B visas and status grants
[[Page 60884]]
would more likely go to higher-paid, higher-skilled beneficiaries.
Facilitating the admission of higher-skilled foreign workers, as
indicated by their earning of wages that equal or exceed higher
prevailing wage levels, 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 discussed in the NPRM. Concerning the survey the
commenter referenced, the commenter did not indicate that there was a
correlation between the potential change in international student
enrollment and this rule.\38\ Further, DHS expects this rule to have a
positive effect on the economy, which could counteract any negative
economic effects caused by a potential drop in enrollment. Regarding
the cultural benefits that international students provide, DHS
reiterates that this rule will not ban international students from
coming to or remaining in the United States, so this aspect is unlikely
to be affected.
---------------------------------------------------------------------------
\38\ The commenter cited to a Fall 2025 International Student
Enrollment Outlook and Economic Impact survey conducted by NAFSA:
Association of International Educators (Aug. 8, 2025), https://www.nafsa.org/fall-2025-international-student-enrollment-outlook-and-economic-impact. DHS reviewed the survey. The survey listed four
factors as driving the claimed decline in international student
enrollment: visa interview suspension, limited appointment
availability, visa issuance trends, and visa bans. All four factors
specifically relate to visa issues, not the H-1B registration
process.
---------------------------------------------------------------------------
Comment: Commenters remarked that this rule would negatively impact
U.S. universities to attract the best students because many students
select the United States for the opportunity to work in the United
States following graduation. Some of these commenters specifically
addressed the OPT program and the possibility of F-1 students
transitioning to an H-1B visa. The commenters stated that this rule
risks deterring international students who wish to study in the United
States specifically because of the prospect of OPT employment. Some
commenters stated that the proposed rule would create a policy
contradiction: the government issues student visas, allows OPT, and
promotes U.S. degrees as a pathway to opportunity, but then erects a
barrier to getting the first job.
Response: DHS does not believe that this rule creates a policy
contradiction or threatens the pipeline of students who wish to study
in the United States. This rule will not impact the ability of
international students to study in the United States, which is the
basis of their admission to the United States in F-1 nonimmigrant
status. Further, this rule has no impact on OPT. While this rule
generally may reduce the chance of selection for relatively lower-paid
or lower-skilled positions, it does not create a barrier to getting a
job on OPT or transitioning to H-1B nonimmigrant status. Rather, as
explained previously, for international students who are offered jobs
with a salary that corresponds to a higher wage level, this rule
increases their chance for selection in the H-1B cap selection process
as compared to their chances in the current random selection process.
Comment: Some commenters opposed the proposal because they reasoned
it would harm research, stating that universities and research labs
depend on international students and graduates. For instance, a
commenter stated that entry-level graduates are essential to the future
of the U.S. workforce as they often work in research labs, develop new
technologies, and fill important roles. Another commenter said master's
and Ph.D. graduates perform a disproportionate share of research labor
and contribute to Federal grant deliverables, and denying them
equitable access to H-1B visas reduces the return on public and private
educational spending. A different commenter noted that research labs
depend on international workers, and that if research labs cannot
obtain the foreign workers they need, then this rule could also harm
U.S. students who wish to work in research labs after graduation.
Similarly, a commenter wrote that the large population of international
students in STEM doctoral programs and federally funded labs generate
patents, publications, and breakthroughs, significantly contributing to
U.S. scientific discovery. The commenter stated discoveries in labs can
emerge from researchers who begin in wage level I positions and
eliminating these positions through the proposed rule would lead to
fewer advancements, and reduced U.S. influence in global research.
Response: DHS disagrees with the assertions that this rule will
harm research or research facilities. The weighted selection process
implemented through this rule impacts the probability of selection
towards the H-1B cap. H-1B petitions for aliens who are employed by, or
have received offers of employment at, U.S. institutions of higher
education, nonprofit entities related to or affiliated with U.S.
institutions of higher education, or nonprofit research organizations
or governmental research organizations are exempt from the H-1B cap.
See INA sec. 214(g)(5), 8 U.S.C. 1184(g)(5). Many employers and aliens
described by these commenters would be cap-exempt and therefore not
impacted by this rule. In FY 2025 alone, USCIS approved over 49,000
petitions that qualified under one of these cap exemptions.\39\ In the
scenarios where researchers are not cap-exempt, DHS believes this rule
will have a positive impact by increasing the chance of selection for
highly paid, highly skilled foreign researchers and encouraging
employers to hire American graduates for research positions instead of
lower-paid aliens. Additionally, DHS disagrees with the concern that
level I positions will be eliminated by this rule. The weighted
selection implemented through this rule favors 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.
---------------------------------------------------------------------------
\39\ DHS, USCIS, OPQ, CLAIMS 3 and ELIS, queried 10/2025,
PAER0019172. Approvals of Petitions from Cap Exempt Employers, By
Cap Exemption and New Employment and Renewal/Amendment Filings,
October 2025. This data shows the following breakdown for total cap-
exempt H-1B approvals in FY25: 24,835 for institutions of higher
education; 19,866 for affiliated or related nonprofit entities;
5,654 for nonprofit research organizations or governmental research
organizations; and 3,634 for beneficiaries employed at a qualifying
cap exempt entity. This data further shows total cap-exempt
approvals in the above categories as follows: 25,452 for New
Employment and 23,901 for Renewals/Amendments. Some petitioners
selected ``Yes'' on multiple questions, which is why the totals are
higher than the sum of the individual categories.
---------------------------------------------------------------------------
Comment: Some commenters said the rule would decrease U.S.
universities' access to or ability to recruit international faculty.
One commenter asserted that wage-based weighting could exacerbate
dental faculty shortages at schools accredited by the Commission on
Dental Accreditation and could thereby limit access to dental
education.
Response: DHS disagrees that this rule will decrease the ability of
academic institutions to recruit or retain international faculty.
Again, this rule will increase the chance of selection for those who
will be paid a wage that corresponds to higher wage levels and thus is
more likely to facilitate the selection of higher paid, higher skilled
international faculty for cap-subject H-1B status.
Also, many petitions for U.S. universities and other academic
institutions of higher learning will likely not be affected by this
rule. Congress already exempted from the annual H-1B cap aliens who are
employed by, or have received offers of employment at, U.S.
institutions of higher education, nonprofit entities
[[Page 60885]]
related to or affiliated with U.S. institutions of higher education,
and nonprofit research organizations or government research
organizations. See INA sec. 214(g)(5), 8 U.S.C. 1184(g)(5). In FY 2025
alone, USCIS approved over 24,000 petitions for petitioners who were
cap exempt as an institution of higher education.\40\
---------------------------------------------------------------------------
\40\ DHS, USCIS, OPQ, CLAIMS 3 and ELIS, queried 10/2025,
PAER0019172. Approvals of Petitions from Cap Exempt Employers, By
Cap Exemption and New Employment and Renewal/Amendment Filings,
October 2025.
---------------------------------------------------------------------------
Comment: Some commenters expressed concern that the proposed
weighted selection process would negatively impact public and private
schools that are already experiencing difficulties recruiting qualified
K-12 teachers in certain areas, such as STEM subjects. Some of these
commenters specifically noted the difficulties faced by public schools,
particularly in rural, low income, or other underserved communities.
These commenters stated that the rule would harm such schools, leaving
them without critical staff. Another commenter, expressing concern over
the rule's impact on public schools, stated that public school
districts cannot adjust salaries to compete for higher wage levels,
because teacher compensation is determined by state or district salary
schedules which are established through statute or collective
bargaining. The commenter emphasized the importance of prioritizing all
qualified educators, including those at entry or mid-career level
likely to be at level I or level II wage levels.
Response: Some public schools may be exempt from the H-1B cap based
on their affiliation with U.S. institutions of higher education. For
those public or private schools that are not cap-exempt and are unable
to proffer wages that equal or exceed prevailing wage levels with
greater chances of selection, including those with compensation levels
outside of the employer's control, they may be able to find available
and qualified workers outside of the H-1B program, including U.S.
workers.
10. Negative Impacts on the Healthcare Sector
Comment: Multiple commenters said the proposed rule would have a
negative impact on the healthcare sector. A commenter stated that
International Medical Graduates (IMGs) \41\ account for significant
portions of healthcare personnel, with others noting that H-1Bs are
heavily utilized in the field. Some commenters stated that when
hospitals face staffing shortages, in specialized areas and generally,
international medical professionals help fill gaps in the workforce and
that a weighted selection would limit access to qualified healthcare
workers. Some commenters cited a U.S. Department of Health and Human
Services statistic estimating a shortfall of around 187,000 physicians
by 2037. Another commenter also noted that the proposed rule could
encourage highly qualified, early-career physicians to practice in
other countries. A commenter noted that international doctors were
critical during COVID-19 and, without them, public health crises would
be harder to manage.
---------------------------------------------------------------------------
\41\ DHS notes that some commenters use the term International
Medical Graduate (IMG) when addressing this rule. DHS further notes
that, as stated in a study cited by a commenter, the term IMG may
refer to the location of a physician's medical school, rather than
citizenship, and as such IMGs may include U.S. citizens and other
aliens not seeking H-1B status. See Awad Ahmed, Wei-Ting Hwang, &
Charles R. Thomas Jr., Deville C. Jr., ``International Medical
Graduates in the US Physician Workforce and Graduate Medical
Education: Current and Historical Trends,'' Journal of Graduate
Medical Education (Apr. 1, 2018), https://jgme.kglmeridian.com/view/journals/jgme/10/2/article-p214.xml. Regardless, DHS believes
responses in this rule sufficiently address commenters' concerns.
---------------------------------------------------------------------------
Numerous commenters remarked that critical fields, such as
healthcare, may offer lower starting salaries compared to other sectors
and said that the proposed rule would ``restrict access to
international experts'' who rely on H-1B visas to work in these
sectors. Another commenter, expressing concern about eliminating a
healthcare talent pipeline, wrote that healthcare professionals in
their required training period are in level I or level II positions and
that level I wages reflect the cost structure of supervised practice.
Another commenter, using the healthcare industry as an example of
industries whose wage structures are incompatible with the proposed
rule, wrote that medical residents and fellows, despite being some of
the most highly educated workers in the United States, earn wages that
would typically be categorized as level I, leading to a reduced
probability of being granted H-1B status and an exacerbation of the
physician shortage.
More than one commenter wrote that hospitals and healthcare systems
cannot easily meet higher wage levels or absorb compliance costs,
particularly small to mid-sized healthcare providers. Another commenter
remarked that the OEWS system under the proposed rule does not reflect
healthcare compensation schemes, which often use standardized pay
scales determined by facility budgets and Medicare reimbursement. One
commenter predicted that adoption of the final rule would lead to
consolidation in the healthcare field and higher costs for patients.
Another commenter suggested that non-profit hospitals, even in urban
areas, would be at a disadvantage compared to for-profit corporations,
creating disparities within the same city.
A commenter noted that wages for physicians vary by medical
specialty. The commenter expressed concern about the impacts of the
rule on primary care physicians, stating that primary care physicians'
wages tend to be lower than the wages of procedure-oriented
specialists. The commenter stated the rule could incentivize IMGs to
apply for higher paying subspecialty positions to increase their chance
of selection, which would further exacerbate shortages in lower paying
specialties. The commenter stated that the rule will exacerbate
shortages in nephrologists and thus lead to an increase in mortality
for people burdened by kidney disease.
Similarly, another commenter expressed concern that the new rule
would disproportionately disadvantage dentists serving in community
health centers and public hospitals and could worsen access to dental
care for vulnerable populations, including in underserved and rural
areas. The commenter stated that many federally qualified health
centers that employ H-1B dentists operate on fixed budgets and cannot
match salaries offered by private or technology sectors.
Response: DHS disagrees that this rule will negatively affect the
healthcare sector. Many H-1B petitions for healthcare workers are cap-
exempt. From FY 2020 through FY 2025, more than 94 percent of H-1B
petitions approved for initial employment for physicians, surgeons, and
dentists were cap-exempt and thus not subject to the H-1B cap selection
process.\42\ In addition, Congress has established programs meant to
encourage certain recent foreign medical graduates to serve in the
United States as H-1B nonimmigrants. These programs are exempt from the
annual H-1B cap and unaffected by this rule. Certain J-1 exchange
visitors are subject to a 2-year
[[Page 60886]]
foreign residence requirement under INA sec. 212(e), 8 U.S.C. 1182(e),
which requires them to return to their country of nationality or
country of last residence for at least two years in the aggregate prior
to being eligible to apply for an immigrant visa; adjustment of status;
or certain nonimmigrant visas, including H-1B visas (with limited
exceptions). See INA sec. 212(e), 8 U.S.C. 1182(e); INA sec. 248, 8
U.S.C. 1258. However, INA sec. 214(l), 8 U.S.C. 1184(l), contains
provisions authorizing waivers of the 2-year foreign residence
requirement for certain aliens, including foreign medical graduates who
agree to work full-time (at least 40 hours per week) in H-1B
classification for not less than three years in a shortage area
designated by the U.S. Department of Health and Human Services (HHS)
with a request from an interested Federal Government agency or state
agency of public health or its equivalent, or with the U.S. Department
of Veterans Affairs. See INA sec. 214(l), 8 U.S.C. 1184(l). See also 8
CFR 212.7(c)(9). The petition requesting a change to H-1B nonimmigrant
status for these physicians is not subject to the numerical limitations
contained in INA sec. 214(g)(1)(A), 8 U.S.C. 1184(g)(1)(A). See INA
sec. 214(l)(2)(A), 8 U.S.C. 1184(l)(2)(A). While participation in the
Conrad 30 program (relating to waivers based on requests from a state
agency of public health or its equivalent for service in an HHS-
designated shortage area) is limited to 30 participants per eligible
jurisdiction annually, the other programs have no limits on the number
of participants. See INA sec. 214(l)(1)(B), 8 U.S.C. 1184(l)(1)(B).
---------------------------------------------------------------------------
\42\ DHS, USCIS, OPQ, Approvals for New Employment with a DOT
Code of 070, 071, 072 Listed by Whether Cap Exempt, Receipt Fiscal
year 2020 through 2025. CLAIMS3, ELIS, queried 10/2025, PAER0019171,
showing that, from FY 2020 through FY 2025, on average more than 94
percent of H-1B petitions approved for initial employment for
physicians, surgeons, and dentists were cap-exempt and not subject
to the H-1B cap selection process). See also 86 FR 1676, 1682 (Jan.
8, 2021) (``Importantly, according to DHS data, in FY 2019, more
than 93 percent of H-1B petitions approved for initial employment
for physicians, surgeons, and dentists were cap-exempt and thus not
subject to the H-1B cap selection process.'').
---------------------------------------------------------------------------
In the scenarios where they are not cap-exempt, DHS believes this
rule may have a positive impact for some highly skilled, highly paid
aliens. DHS notes that shortages of medical professionals are multi-
causal and beyond the scope of one visa category to address. With
respect to the ability to offer increased wages generally, DHS
acknowledges that healthcare institutions, like employers in all
industries, are impacted by a variety of factors in determining
employee salary. For employers unable to proffer wages that equal or
exceed prevailing wage levels with greater chances of selection, they
may be able to find available and qualified workers outside of the H-1B
program, including U.S. workers. Additionally, it is possible that
aliens filling the positions described by these commenters would be
eligible for alternate immigrant or nonimmigrant classifications
offering employment authorization.
Further, DHS disagrees with the comment that this rule may unfairly
discriminate against primary care physicians who typically have lower
annual salaries than certain specialty physicians. In general, family
physicians or other primary care physicians have different SOC codes
than specialty physicians. As DOL prevailing wage level calculations
generally differ by SOC codes, when wage data is available, the
corresponding wage level would necessarily account for the different
occupational classification for primary care physicians as opposed to
other types of physicians. When such wage level data is unavailable,
wage level weighting will be based on the skill, education, and
experience requirements for the position, again taking into account the
particulars of the relevant occupational classification, such that
registrations or petitions for primary care physicians will be weighted
in comparison to the normal requirements for primary care physicians
and not in comparison to other types of physicians. As such, DHS does
not believe that this rule will disadvantage registrations or petitions
for primary care physicians or any other subset of physicians.
Comment: Some commenters identified other employers and
professionals in the healthcare field who would be negatively impacted
by this rule, including nurses; pharmacists; laboratory technologists,
healthcare IT professionals working in data security, analytics, and
telehealth systems who are protecting patient data and furthering
innovation; and therapists and counselors providing mental health and
other services. Some commenters noted that those in emergency
preparedness fields who partner with healthcare workers will be
negatively impacted by this rule. These commenters generally stated
that the rule would make it financially and logistically difficult for
healthcare-related employers to recruit and retain essential staff.
Response: Overall, DHS believes this rule will have a positive
impact by increasing the chance of selection for the most highly
skilled, highly paid aliens within each SOC code and encouraging
companies to hire U.S. workers. For employers unable to proffer wages
that equal or exceed prevailing wage levels with greater chances of
selection, they may be able to find available and qualified workers
outside of the H-1B program, including U.S. workers. DHS notes that
shortages in the number, distribution, and specialties of medical
professionals are multi-causal and beyond the scope of one visa
category to address. DHS believes that this rule will promote the
interests of U.S. workers--and those students and trainees who are
future workers--in line with administration priorities. Additionally,
it is possible that aliens filling the positions described by these
commenters would be eligible for alternate immigrant or nonimmigrant
classifications offering employment authorization.
11. Negative Impacts on Rural or Underserved Communities
Comment: Multiple commenters stated that the proposed rule would
have a particularly negative impact on healthcare in rural and
underserved areas with one commenter noting the unique and complex
challenges faced by patients in rural areas. A commenter stated that in
falsely assuming high-skilled workers are paid a higher wage, the rule
devalues high-skilled physicians in underserved areas and could lead to
the consolidation of physicians in larger healthcare organizations,
leading to greater costs for patients. Some commenters expressed
specific concerns that underserved or rural areas that are reliant on
international doctors would face difficulties with or lose healthcare
access, with one commenter noting such areas could potentially face
facility closure. Without citing specific data, a commenter remarked
that IMGs are more likely to serve in rural and underserved areas
compared to their U.S. counterparts. The commenter said that the
proposed rule disincentivizes entering specialty programs with lower
wages, further exacerbating primary care shortages in rural and
underserved areas. Another commenter similarly opined that because U.S.
medical graduates typically apply for and locate in urban and higher-
income areas, when non-urban medical facilities lose access to IMGs
because of the proposed rule, they would struggle to find alternative
healthcare worker options. The commenter reasoned that the result would
be the closure of emergency rooms, obstetric services, and specialty
care, creating ``medical deserts'' that require rural residents to
travel hours for basic medical care.
Response: DHS acknowledges the important role that foreign
physicians may play in providing healthcare in rural and/or underserved
communities, including early career and entry level physicians. As
explained in response to the previous comments, Congress has
established programs meant to direct foreign medical graduates to those
communities.
[[Page 60887]]
As noted previously, physicians whose nonimmigrant status is
changed to H-1B through their participation in any of the three waiver
programs in INA sec. 214(l), 8 U.S.C. 1184(l), are not subject to the
annual H-1B caps. The Conrad 30 program (relating to waivers based on
requests from a state agency of public health or its equivalent for
service in an HHS-designated shortage area) is limited to 30
participants per eligible jurisdiction annually. See INA sec.
214(l)(1)(B), 8 U.S.C. 1184(l)(1)(B). However, there are no annual
limits on the number of aliens who can obtain a waiver through service
in an HHS-designated shortage area based on the request of an
interested Federal Government agency. Since these programs are not
subject to the annual H-1B caps, they will not be affected by this rule
and the programs will continue to provide a pipeline for these
physicians to serve in HHS-designated shortage areas.
Congress has established a similar statute in the immigrant
context, which also channels physicians to serve in HHS-designated
shortage areas, commonly known as the Physician National Interest
Waiver Program. See INA sec. 203(b)(2)(B)(ii)(I), 8 U.S.C.
1153(b)(2)(B)(ii). That program has no limits on the number of
physicians who can participate in a given fiscal year, though there are
numerical limitations on the number of employment-based immigrant visas
that can be allocated annually. This program is unaffected by this rule
and will continue to provide a pipeline for an unlimited number of
physicians to serve in HHS-designated shortage areas.
DHS acknowledges that some alien physicians seeking to serve in
rural or underserved areas would be subject to H-1B numerical
limitations. DHS is aware that medical institutions in rural or
underserved areas may not be U.S. institutions of higher education,
related or affiliated non-profit entities, or non-profit research
organizations or governmental research organizations and, as a result,
aliens who are employed by or who have received an offer of employment
from such medical institutions may not be exempt from the annual H-1B
numerical limitations under INA sec. 214(g)(5), 8 U.S.C. 1184(g)(5).
DHS also acknowledges that not all alien physicians who serve in rural
or underserved areas as H-1B nonimmigrants are participating in the
waiver programs of INA sec. 214(l), 8 U.S.C. 1184(l). However, some
medical institutions in rural or underserved areas do meet the
requirements to be cap-exempt, and their employees will not be subject
to the numerical limitations.\43\ To the extent these physicians are
subject to H-1B numerical limitations, DHS believes this rule will have
a positive impact by increasing the chance of selection for highly
skilled, highly paid aliens. Additionally, it is possible physicians
may avail themselves of alternative pathways to serve in these areas.
---------------------------------------------------------------------------
\43\ DHS, USCIS, OPQ, Approvals for New Employment with a DOT
Code of 070, 071, 072 Listed by Whether Cap Exempt, Receipt Fiscal
year 2020 through 2025. CLAIMS3, ELIS, queried 10/2025, PAER0019171,
showing that, from FY 2020 through FY 2025, on average more than 94
percent of H-1B petitions approved for initial employment for
physicians, surgeons, and dentists were cap-exempt and not subject
to the H-1B cap selection process).
---------------------------------------------------------------------------
Further, as with all other registrations, DHS will weigh and select
registrations for these positions generally according to the highest
OEWS prevailing wage level that the proffered wage equals or exceeds,
which necessarily takes into account the area of intended employment
when such wage level data is available. Where there is no current OEWS
prevailing wage information for the proffered position, which DHS
recognizes is the case for some physician positions based on
limitations in OEWS data, the registrant would follow DOL guidance on
prevailing wage determinations to determine which OEWS wage level to
select on the registration. The determination of the appropriate wage
level in those instances would be based on the skill, education, and
experience requirements of the position, and generally does not take
into consideration the area of intended employment. Therefore, DHS does
not believe that this rule necessarily will disadvantage rural and/or
underserved communities relative to registrations or petitions based on
offers of employment in other areas.
Comment: Expressing concern about the impact of the rule on rural
healthcare, a commenter pointed specifically to the impact on nurses in
H-1B status, stating that in fiscal year 2025, 34 out of the 367 nurses
they hired were on H-1B visas. The commenter interpreted data presented
in the NPRM as stating that nurses will be treated as a level I
position, disadvantaging them as compared to certain other SOC codes.
Response: DHS disagrees with the commenter's blanket assumption
that nurses will be treated as a level I position or will be
disadvantaged compared to other SOC codes. DHS aims to incentivize
employers to offer higher wages, or to petition for positions requiring
higher skills and higher skilled aliens that are commensurate with
higher wage levels, across all occupations. Under this rule,
registrations (or petitions, as applicable) will be weighted generally
based on the highest OEWS wage level that the prospective beneficiary's
proffered wage equals or exceeds for the relevant SOC code in the
area(s) of intended employment. Employers may choose to offer a higher
wage to a prospective beneficiary whose skill level they value and who
they wish to retain to increase that beneficiary's chances of
selection.
12. Negative Impact on Small Businesses, Startups, and Nonprofits
Comment: Several commenters said the proposed rule would have a
negative impact on small businesses, startups, and nonprofits. Multiple
commenters stated that smaller entities, startups, and nonprofits
cannot afford to pay higher wage levels compared to large corporations
and often rely on international talent or new graduates to support
their business. A commenter said that small businesses and startups
will not be able to afford such wage premiums, as they frequently
operate with limited capital while offering alternative incentives like
equity ownership, stock options, or future profit participation, which
would not be recognized under the proposed weighted-lottery selection
process. Similarly, commenters wrote that small companies typically
lack financial resources or legal staff compared to large corporations
with more resources. One commenter did an analysis to show that small
businesses would be disproportionately adversely affected by the
proposed weighting scheme. This analysis showed that since small
businesses disproportionately have petitions at wage levels I and II,
their projected share of H-1B visas would fall.
A few commenters specified that the burden of increased compliance,
including documenting wage levels, SOC codes, and matching registration
and petition data, may disproportionately strain small companies with
fewer resources and often without in-house legal or human resources
(HR) compliance teams.
One commenter remarked that the proposed rule may deter talented
workers who are seeking opportunities at small businesses or startups
that typically offer lower wages. Another commenter stated that
although the proposed weighted selection process will disadvantage all
U.S. companies that have talent needs that are not met by the domestic
labor market, the problem will be worse for smaller-sized employers,
and especially for small non-profit employers that are not cap-
[[Page 60888]]
exempt. Numerous commenters suggested that the proposed rule would
disadvantage veteran-owned businesses that are often small and benefit
from specialized international workers. Some commenters remarked that
nonprofits help underserved communities and without international
experts, vulnerable populations could suffer without support.
Response: This rule does not treat people who work for small
businesses, startups, non-profits, or other small-sized entities
(including veteran-owned businesses) differently than those who work
for large, established companies. While DHS recognizes that some small-
sized entities may operate on smaller margins than larger companies, if
an employer values a beneficiary's work and the unique qualities the
beneficiary possesses, the employer could offer a higher wage than
required by the prevailing wage level to reflect that value. This rule
will benefit those small entities that are applying for relatively
higher-paid employees, as they will have a greater chance of their
employees being selected compared to the current random selection
process. If a small-sized entity is unable to pay a beneficiary at a
higher wage level for a greater chance of selection, they could try to
find a U.S. worker. U.S. employers, including small-sized entities,
could also consider hiring recent American graduates to meet their
business needs while playing an integral part in the U.S. worker's
career growth.
DHS acknowledges that this final rule will have an economic impact
on small businesses, startups, or other small-sized entities that can
only offer a level I wage, as those registrations will have a lesser
chance of selection than under the current random selection process.
However, as explained in the NPRM, DHS conducted an initial regulatory
flexibility analysis and found no other alternatives that achieved the
stated objectives with less burden to small entities. 90 FR 45986,
46016 (Sept. 24, 2025). Given that 76 percent of unique cap-subject H-
1B filers are small entities, and 47 percent of H-1B cap petitions in
FY 2024 were filed by small entities, any alternative process that
provides a different, preferential weighting scheme for small entities
would undermine the overall utility of this rule, which is to generally
favor the allocation of H-1B visas to higher-skilled and higher-paid
aliens. And as mentioned previously, it is possible that any
alternative that imposes a lower burden on small entities generally
could also reduce those employers' chance of selection for higher wage
level workers.
DHS also disagrees that the burden of complying with the rule will
disproportionately affect smaller employers. As stated in the NPRM, DHS
estimates that the changes implemented in this rule would increase the
time burden by 20 minutes for each registration and by 15 minutes for
each petition, whether completed by an HR specialist, in-house lawyer,
or outsourced lawyer. If a smaller employer is using an outsourced
specialist for H-1B work in general, the additional paperwork burden
associated with this rule is unlikely to be substantial in most cases.
Finally, DHS does not believe this rule will have a significant
negative impact on nonprofit organizations. Congress already exempted
from the H-1B cap any alien who is employed or has received an offer of
employment at a U.S. institution of higher education, a non-profit
entity related or affiliated with a U.S. institution of higher
education, or a non-profit research organization or a governmental
research organization. See INA sec. 214(g)(5), 8 U.S.C. 1184(g)(5); 8
CFR 214.2(h)(8)(iii)(F). Thus, many petitions for nonprofits will not
be affected by this rule. For those nonprofit entities that are not
cap-exempt and are unable to proffer wages that equal or exceed
prevailing wage levels with greater chances of selection, they may be
able to find available and qualified U.S. workers.
13. Industry and Occupational Disparities
Comment: Some commenters expressed concern that the proposed rule
would disproportionately favor certain industries and occupations over
others, as some sectors have more financial resources and are more
readily able to absorb the costs associated with offering higher wages.
Some commenters said that industries with naturally higher wage
structures, such as technology and finance, would have an advantage
over sectors with lower prevailing wages, regardless of the importance
or skill level of the positions.
Other commenters asserted that the rule would put some industries
at a competitive disadvantage. Many commenters said that wage-based
selection would privilege existing high-income sectors and reinforce
barriers for professionals working in critical lower-paying fields,
positions that are often hard to fill and vital to U.S. long-term
competitiveness. Some commenters remarked that the proposed rule may
have a negative effect on the arts and other creative and recreational
endeavors in the United States. One commenter said that the rule will
harm educators, health care workers, and nonprofit professionals. A
commenter said that a wage-based selection system is biased against
certain professions, particularly lower-paying professions like
research, healthcare, urban planning, and civil engineering. This
commenter asserted that the additional financial burden of offering
higher wages would eliminate some industries' abilities to use the H-1B
program. Other commenters wrote that the rule creates a significant
bias towards large multinational technology corporations and disfavors
the engineering industry, which is already facing a critical labor
shortage. One commenter said that architecture, engineering, and
construction industries would be disadvantaged under the proposed
rule's weighting system, and another commenter suggested that every
engineering hire should be in a bracket based on the specific industry,
rather than all competing against software engineers. A few other
commenters discussed the rule's perceived disproportionate harm on
manufacturers, particularly on small- and medium-sized manufacturers
and manufacturers in the electro-industry, stating that many jobs in
the manufacturing industry fall into lower wage levels. A different
commenter suggested that employers, such as universities, hospitals,
regional service firms, and manufacturers that maintain distributed or
hybrid operations would be penalized. A commenter said that the
proposed rule unfairly disadvantages essential infrastructure and
public-interest professions--such as civil, structural, environmental,
and transportation engineering--whose wages are tied to public-sector
pay scales and regional cost-of-living differences rather than
individual skill or value to the nation. Citing data on median salaries
per wage level, another commenter stated that the proposed H-1B cap
selection process disadvantages innovative technology companies that
pay significantly higher wages even at lower wage levels, and remarked
that the proposed rule fails to fulfill President Trump's directive to
prioritize high-paid nonimmigrants, as it does not account for the
substantial wage differences between industries and employers at the
same wage level.
Other commenters expressed concern that the wage-based weighting
system would create a system that prioritizes ``roles less important to
U.S. interests.'' The commenters stated that, due to the complex nature
of wage level
[[Page 60889]]
calculations, there are scenarios where individuals assigned a high
wage level in an occupation that the commenter considered less
important to national interests would receive more entries in the H-1B
lottery than an individual assigned a lower wage level in a more
important occupation. The commenter provided examples of how a
landscape architect and acupuncturist with higher wage level salaries
would have higher chances of selection than an AI researcher, surgeon,
or startup executive.
Response: This rule does not, and is not intended to, treat any
industries better or worse than others. Nor does this rule seek to
prioritize ``roles less important to U.S. interests.'' DHS acknowledges
that, as stated in the NPRM, this rule will likely impact the number of
selected registrations for certain SOC codes, with some occupations
possibly seeing a decrease in selected H-1B registrations while others
seeing an increase. 90 FR 45986, 46008-09 (Sept. 24, 2025). However,
the goal of this rule is to implement a weighted selection process that
would generally favor the allocation of H-1B visas to higher-skilled
and higher-paid aliens, while ensuring meaningful opportunities for
selection regardless of industry or profession. An employer could offer
a higher wage than required by the prevailing wage level to reflect the
value of the prospective employee; an employer that chooses not to do
so, or cannot do so, may still enter a registration that would
potentially be selected. DHS believes this rule will benefit the best
and brightest workers in all professions and industries.
14. Geographic and Regional Disparities
Comment: Some commenters said that the weighted selection process
fails to account for regional differences in wage levels, creating
geographic inequities and favoring employers in high-wage metropolitan
areas while disadvantaging those in regions with lower costs of living
and correspondingly lower prevailing wages. Some commenters remarked
that talent would concentrate in high-cost regions, such as Silicon
Valley and the Bay Area, noting that wages differ substantially by
location due to regional cost-of-living variation, not worker skill.
Conversely, other commenters claimed that the proposed weighted
selection process would benefit companies in lower-cost areas while
hurting startups and other tech companies in high-cost hubs like
Silicon Valley, with one commenter stating that pushing talent away
from such hubs would make these regions less globally competitive.
Some commenters wrote that the rule would exacerbate existing
regional economic imbalances by concentrating talent in a few major
metropolitan areas and leaving rural areas with talent shortages.
Multiple commenters said companies in rural areas providing competitive
wages for their location are disadvantaged against employers in high-
cost metropolitan areas that can offer higher wages. Some commenters
also remarked that the proposed rule would leave rural areas
underserved and exacerbate economic inequality. A commenter wrote that
the proposed rule would undermine the ``billions of dollars'' the
United States has invested into encouraging regional development in
smaller cities. Another commenter said that the proposed rule would
create severe economic disruptions in regions that have built their
economies around industries that depend on international talent by
restricting the flow of such talent.
Response: DHS does not believe that this rule will necessarily
disadvantage certain geographic regions as compared with others. As
with all other cap-subject H-1B registrations (or petitions), DHS will
weight registrations for these positions generally according to the
highest OEWS prevailing wage level that the proffered wage equals or
exceeds, which necessarily takes into account the area of intended
employment. In other words, under this rule, registrations
corresponding to the same wage level will be weighted the same
regardless of whether their proffered wages are different owing to
their areas of intended employment. This final rule neutralizes
geographic differences in salary amounts by taking into account the
area of intended employment when weighting registrations. DHS therefore
does not agree that this rule would disadvantage certain geographic
regions, exacerbate existing regional economic imbalances, or undermine
regional development. With respect to the commenter's concern about
regions with economies built around specific industries that depend on
international talent, DHS disagrees that this rule would restrict the
flow of such talent. Instead, the rule will 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.
15. Negative Impacts on Mixed Compensation Models
Comment: Commenters expressed concern that a wage-based selection
process does not consider all aspects of compensation. A commenter
pointed out that while the OEWS data takes into account a range of
other types of pay (such as commission, cost-of living allowance,
hazard pay, incentive pay, piece rate, production bonus, and tips,)
employers are only allowed to use the base wages when complying with
wage requirements in the H-1B program.
Commenters wrote that an employee's pay can go beyond base pay and
can include: bonuses, equity, benefits, commission, cost-of-living
allowance, deadheading pay, guaranteed pay, hazard pay, incentive pay,
longevity pay, over-the-road pay, piece rate, portal-to-portal pay,
production bonus, and tips, with some commenters noting that such
incentives may vary by industry. Other commenters expressed concern
that small businesses and startups, which often rely on equity
compensation, future profit participation, or stock options rather than
high salaries, would be particularly disadvantaged. Some commenters
said that if only base salary is considered, it would not provide a
standardized comparison and could distort the H-1B selection process.
Some commenters remarked that employers relying on equity-based pay
may appear to offer lower wages despite competitive packages and
cautioned that these employers could inflate base salaries without
improving total compensation, potentially distorting the system.
Similarly, a commenter remarked that the proposed rule would overlook
the challenge of adjudicating disputes about compensation packages that
include bonuses, equity, or other non-cash benefits. The commenter
stated that because the system privileges base salary alone, employers
will be incentivized to overstate base pay on paper while cutting back
on other components of total compensation. The commenter expressed
concern that this creates enforcement disputes that USCIS is ill-
equipped to resolve at scale.
Some commenters suggested that DHS could improve the system by
incorporating total compensation, including the cash value of stock and
bonuses. A commenter suggested that if wages are considered, it would
make sense to consider past Internal Revenue Service (IRS) transcripts
of candidates to get a more complete picture of compensation.
Response: DHS recognizes that companies may offer various forms of
pay and benefits provided as compensation for services, such as cash
bonuses, stock options, paid insurance, retirement and savings plans,
and profit-sharing plans. While cash bonuses may, in limited
circumstances, be counted towards the annual salary (see 20 CFR
[[Page 60890]]
655.731(c)(2)), other forms of benefits, such as stock options, profit
sharing plans, and flexible work schedules may not be readily
quantifiable or guaranteed, which means that they cannot reliably be
calculated into proffered wages. While this may affect some petitioners
and beneficiaries negatively, DHS does not believe there is a viable
alternative that could consider all of the various forms of
compensation that companies may offer that could be implemented in an
uncomplicated and predictable way. Additionally, DOL regulations define
payment of wages for purposes of satisfying the H-1B required wage. See
20 CFR 655.731(c)(2). This rule does not change how wages are defined
or measured. Regarding the suggestion to consider past IRS transcripts
of candidates, DHS notes that proffered wages at the time of
registration and petition filing generally relate to future employment,
so it is unclear what purpose transcripts or other IRS documentation of
prospective employees would serve.
16. General Concerns on Wage-Based Selection
Comment: Many commenters said that wage is not a proxy for
experience, skill, or education and that the rule erroneously assumes
those who earn more contribute more to the economy or society. Other
commenters stated the proposed rule would significantly reduce the
chances of obtaining an H-1B visa in entrepreneurial, academic, and
research spaces which would restrict access to international workers
with specialized skills in these areas. Other commenters said that the
new system would disadvantage top earners, as a highly paid individual
with a level I wage in a high-earning field would be ranked lower than
someone who earns far less as a level IV in a lower-earning field.
Commenters also stated that the proposed rule would favor only
experienced, high-paid workers and big firms, while shutting out early-
career professionals and the startups, healthcare institutions, and
research sectors that rely on them. One commenter said that by
conflating wage level with skill and innovation potential, DHS would
systematically disadvantage the early-career talent pipeline that
drives technological breakthroughs. Another commenter stated that the
proposed weighted selection process does not account for a level IV H-
1B employee who may be laid off and may need to accept a bridge job at
level II or III, putting their status in jeopardy.
Response: DHS disagrees with these comments and believes that
salary generally is a reasonable proxy for skill level.\44\ 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 reflects
the unique qualities the beneficiary possesses. DHS does not believe
this rule will favor certain high paying professions or companies,
because the rule takes into account wage level relative to the SOC code
when weighting registrations (or petitions). Additionally, DHS
recognizes that this rule will decrease the chance of H-1B cap
selection for jobs with a proffered wage that corresponds to a level I
wage, but it does not shut out early-career professionals. As stated in
the NPRM and throughout this final rule, DHS recognizes the value in
maintaining the opportunity for employers to secure H-1B workers at all
wage levels. DHS also disagrees with the concern that wage levels are
inadequate to compare workers across occupations as this rule is
designed to generally favor the allocation of H-1B visas to higher-
skilled and higher-paid aliens, while ensuring meaningful opportunities
for selection regardless of industry or profession.
---------------------------------------------------------------------------
\44\ See DOL, Educational Level and Pay, https://www.dol.gov/general/topic/wages/educational (last visited Nov. 24, 2025)
(``Generally speaking, jobs that require high levels of education
and skill pay higher wages than jobs that require few skills and
little education.''). See also ``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.'').
---------------------------------------------------------------------------
DHS also does not believe that this rule will disadvantage
particular industries or employers based on geography, size, or other
factors. Wage levels already account for these factors by taking into
account the area of intended employment and SOC code. While the
weighted selection process may not account for every scenario, such as
a laid-off worker taking a temporary lower paying job, DHS believes
that this is a rare scenario and is unable to provide for every
possible scenario when implementing a weighting process that is
uncomplicated and predictable for prospective petitioners. Further, DHS
believes that the advantages of the new selection process and the
benefits it will bring to the economy overall outweigh any possible
disadvantages that may occur in rare cases.
17. Concerns With the OEWS Program
Comment: Several commenters expressed concern with using the OEWS
program. For instance, a commenter noted that the rule relied on faulty
wage level assumptions in using the OEWS data and said that the OEWS
wage survey, on which H-1B wage levels are based, was never intended to
measure skill or productivity. The commenter explained that its purpose
is to represent mean and percentile wage distributions within
occupational codes, and it makes no adjustment for the employer's
industry, business model, or regional cost factors. The commenter said
that the proposed rule's assumption that positions commanding a wage
that corresponds to a level IV wage represent the ``most skilled''
workers ignores the structural wage differentials that exist across
industries. The commenter notes that DOL's OEWS data aggregate wages
across all employers within an occupation, without adjusting for the
profit structure, funding model, or public versus private character of
the employer, and that the wage levels are based primarily on
statistical percentiles of pay, not individualized measures of
experience. As a result, the proposed weighted selection process risks
granting preferential treatment to junior employees in lucrative
markets over experienced professionals in essential but lower-paying
fields, such as education, public health, and infrastructure
engineering. Similarly, several commenters stated that wage levels are
inadequate to compare workers across occupations.
A commenter also expressed concern with wage inflation, noting that
it reflects market conditions rather than skill increases. The
commenter noted that some areas, such as technology, finance, and law
have seen wage inflation in recent years, where compensation has
escalated due to market competition rather than measurable increases in
skill and the proposed weighted selection process would reward
industries that can inflate salaries fastest, not those that develop or
employ the most capable workers. Other commenters stated that the
selection process artificially inflates the chances of roles requiring
less training, experience, or responsibility.
Response: DHS appreciates these concerns but maintains that salary
generally is a reasonable proxy for skill
[[Page 60891]]
level.\45\ While DHS is aware that some structural wage differentials
may exist across industries, DHS is not aware of an efficient and
uncomplicated way to incorporate such differentials into the OEWS wage
system or to otherwise account for these differentials when weighting
and selecting registrations or petitions. Similarly, DHS is not aware
of an alternate program (other than OEWS) that would consider such
unique factors as individualized experience and wage inflation. While
no data set is perfect, the OEWS data represents the best available
resource for this purpose. DHS favors using the OEWS wage level system
because it is already used in the H-1B program, widely recognized,
publicly available, and updated annually by DOL. DHS intentionally
chose a selection methodology that used information and resources
already familiar to most petitioners and stakeholders. Utilizing OEWS
wage levels allows USCIS to leverage employers' existing knowledge of
the wage levels in order to implement the weighted selection process.
Employers are already required to complete LCAs and access OEWS wage
information or alternative wage sources. This rule simply requires that
the employer will look at the wage they are offering the alien and,
when OEWS wage level is available, select the wage level that
corresponds to that offered wage for the offered position's SOC codes
and metropolitan statistical area (MSA). Although OEWS does not collect
information on skill or experience levels, DHS believes it is
reasonable to use features of the OEWS wage distribution as a proxy for
those variables. If OEWS wage level is unavailable, the employer
determines the wage level using the DOL guidance that the employer
would otherwise follow when determining the relevant wage level to
select on the LCA.
---------------------------------------------------------------------------
\45\ See DOL, Educational Level and Pay, https://www.dol.gov/general/topic/wages/educational (last visited Nov. 24, 2025)
(``Generally speaking, jobs that require high levels of education
and skill pay higher wages than jobs that require few skills and
little education.''). See also ``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.'').
---------------------------------------------------------------------------
Comment: A commenter expressed concern that the rule would create
confusion between the wage level offered for USCIS purposes and the
wage level required under DOL rules. The commenter noted that if a
petitioner decides to pay a beneficiary a higher wage level than what
is required under DOL rules for a better chance at selection (such as a
level IV wage), then the prevailing wage level indicated in its
registration submitted to USCIS will not match the prevailing wage
level indicated on its LCA submitted with the petition (which may have
been a level I wage). The commenter stated that at minimum, USCIS
should refine 8 CFR 214.2(h)(8)(iii)(D)(1) to make clear that the
actual LCA submitted with an H-1B petition should still calculate the
prevailing wage based upon existing DOL rules, and the offered wage
listed in the registration is to be used solely for determining the
weighting of the lottery entry.
Response: As clearly stated in the NPRM, a registrant is 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. 90 FR 45986,
45992 (Sept. 24, 2025). DHS does not agree that this is confusing.
Conversely, DHS believes it would be confusing to add language in 8 CFR
214.2(h)(8)(iii)(D)(1) that discusses how to calculate the prevailing
wage under DOL rules since this provision is about filing procedures
with USCIS.
18. Other Opposition
Comment: A commenter expressed concern that the rule allows the
government to manipulate market-based wages through the use of
immigration policy, saying this rule establishes ``dangerous precedents
for government wage determination.'' The commenter claimed that this
represents ``a fundamental departure from how the United States has
historically approached labor markets,'' and noted that in the labor
market, wages are primarily determined through negotiations between
employers and workers. While the commenter acknowledged that the
government is justified in ensuring fair wages for U.S. workers and H-
1B workers, the commenter concluded that the proposed weighted
selection system goes beyond these legitimate interests into government
intervention in market-based wages.
Response: DHS disagrees with this commenter. This rule merely fills
in a statutory gap regarding how to administer the H-1B numerical
allocations in years of excess demand, consistent with DHS's statutory
authority to determine the form and manner of submitting H-1B petitions
and the administration of the H-1B numerical allocations. See INA secs.
103(a) and 214(c)(1), 8 U.S.C. 1103(a) and 1184(c)(1). This rule does
not constitute government intervention in market-based wages. Through
this rule, DHS is not mandating what wages employers must pay their
employees. Employers that wish to participate in the H-1B program may
be incentivized to offer higher wages to their prospective H-1B workers
in order to increase their chances of selection under the cap, but they
remain free to determine what wages they want to offer prospective H-1B
employees. Employers also remain free to choose not to participate in
the H-1B program.
Further, this rule does not represent ``government intervention''
in the labor market nor a ``fundamental departure from how the United
States has historically approached labor markets,'' as the commenter
claimed. In order to participate in the H-1B program, employers have
always had to meet certain wage requirements, including prevailing wage
requirements as determined by DOL and other generally applicable
Federal and state wage requirements. See 20 CFR 655.40. It is therefore
unclear what the commenter means by claiming that this rule would
establish ``dangerous precedents for government wage determination''
when various government agencies routinely regulate an employer's wage
obligations and given that this rule does not mandate what wages
employers must pay their employees.
Comment: A few commenters discussed how the proposed rule would
unfairly and disproportionately harm certain minority groups. Some of
these commenters specifically noted the disproportionate impact on
Asian and Pacific Islander groups, pointing out that Asian workers
account for the majority of H-1B workers in the United States. Another
commenter said that the rule would have a disparate impact on Hispanic
groups, claiming that the rule would deepen existing racial wealth
disparities.
Response: DHS disagrees that this rule will unfairly impact certain
minority groups or deepen racial wealth disparities. This rule does not
target or favor any particular minority group. This rule merely
increases the chance of selection for aliens who will be paid a wage
that corresponds to a higher wage level, regardless of their race,
ethnicity, or country of origin.
[[Page 60892]]
C. Legal Authority, Basis, and Background
1. Statutory Authority
Comment: Several commenters supported the rule, saying that the
changes to H-1B selection are consistent with statutory language.
Commenters stated that the statutory language is ambiguous and silent
as to how visas should be allocated if they cannot be issued in the
order that they were filed, and that the proposed wage level weighting
scheme is reasonable and within DHS's authority. Some commenters agreed
that DHS has the authority to determine how the government selects H-1B
petitions when they receive more petitions than available visas.
Response: DHS agrees that the statute is silent as to how USCIS
must select H-1B petitions, or registrations, to be filed toward the
numerical allocations in years of excess demand; the term ``filed'' as
used in INA sec. 214(g)(3), 8 U.S.C. 1184(g)(3), is ambiguous; \46\ and
these changes are reasonable and within DHS's general authority. See
INA secs. 103(a), 214(a), and (c)(1), 8 U.S.C. 1103(a), 1184(a), and
(c)(1).
---------------------------------------------------------------------------
\46\ See Walker Macy LLC v. USCIS, 243 F. Supp. 3d 1156, 1170
(D. Or. 2017).
---------------------------------------------------------------------------
Comment: Some commenters said the proposed rule would violate the
INA, which prioritizes the selection of H-1B cap-subject petitions in
the ``order in which they are filed,'' and that USCIS lacks the
statutory authority for the proposed weighted selection process. Some
commenters stated that the INA says that DHS ``shall'' issue visas in
the order in which they are filed, underscoring that this is a
statutory mandate not subject to DHS's discretion. Commenters stated
that, while the random lottery is permissible, there is nothing in the
statute allowing for wage-based prioritization and thus the proposed
rule exceeds DHS's statutory authority. Commenters remarked that INA
sec. 214(g) is silent on allocation methods beyond random selection,
and that USCIS cannot use the statute's silence as an invitation to
adopt wage- or skill-based criteria. Echoing other commenters' concerns
about DHS's lack of statutory authority for the rule, some commenters
added that an executive action like the one proposed in the NPRM would
require legislative action or approval by Congress. Commenters stated
that the Executive Branch does not have ``plenary authority'' and there
are processes in place to amend laws.
A commenter said the rule is ultra vires because it improperly
changes the process and adds new requirements to the selection order
for H-1B cap subject petitions that exceed what is clearly stated in
the INA. The commenter cited INA sec. 214(g)(3), which states:
Individuals subject to H-1B numerical limitations ``. . . shall be
issued visas (or otherwise provided nonimmigrant status) in the order
in which petitions are filed for such visas or status.'' Pointing out
that Congress did not change this section when it amended it through
the H-1B Visa Reform Act of 2004, the commenter asserted that the
proposal to add the wage level element violates clear congressional
intent. The commenter added that the well-established principle of law
remains that an agency cannot modify a statute by regulation, and that
since the statute is neither ambiguous nor silent, Congress did not
leave a gap for USCIS interpretation via regulation. The commenter
added that it is particularly telling that the agency previously
evaluated this very issue in January 2019 and concluded that the INA is
clear and does not permit the type of prioritization it proposes
here.\47\ The commenter asserted that USCIS cites no congressional
intent relating to the H-1B numerical cap and its justification and
reasoning lacks analysis from official research or studies by
government agencies.
---------------------------------------------------------------------------
\47\ See ``Registration Requirement for Petitioners Seeking To
File H-1B Petitions on Behalf of Cap Subject Aliens,'' 84 FR 888,
913 (Jan. 31, 2019) (noting that ``DHS believes that reversing the
cap selection order to prioritize beneficiaries with a master's or
higher degree from a U.S. institution of higher education is a
permissible interpretation of the existing statute, as explained in
detail in response to other comments in this preamble. DHS believes,
however, that prioritization of selection on other bases such as
those suggested by the commenters would require statutory
changes.'').
---------------------------------------------------------------------------
Several other commenters also noted that DHS previously determined
in its 2019 rule, Registration Requirement for Petitioners Seeking to
File H-1B Petitions on Behalf of Cap-Subject Aliens, that
prioritization based on salary would require statutory changes. Some
commenters said that senators introduced bipartisan legislation four
days after the publication of this proposed rule to authorize DHS to
process H-1B petitions on proffered wages, and commented that Congress
would not be legislating on this exact issue if it thought DHS could
implement these changes to the H-1B program on its own.
Some commenters wrote that the Supreme Court's 2024 overruling of
the Chevron framework eliminated the judicial deference to agencies in
Administrative Procedure Act (APA) rulemaking. A commenter noted that
since the 2024 Supreme Court decision in Loper Bright Enterprises v.
Raimondo, Chevron deference has been overturned, ``thereby removing the
power of administrative agencies to interpret ambiguous statutes.''
Similarly, another commenter stated that the proposed rule would go
beyond the discretion afforded by Congress and that USCIS discretion is
constrained by Loper Bright such that USCIS may not simply use its
preferred interpretation of ``filing'' under that statute, but instead
must use ``the best'' interpretation, as any other interpretation is
impermissible. The same commenter indicated support for the
Administration's goal of prioritizing high-skilled immigration, but
stated that USCIS' obligation to administer the INA does not give USCIS
the flexibility to select applicants in the manner proposed by this
rule.
Response: DHS disagrees with the commenters' assertions that the
weighted selection process would violate the INA or that DHS lacks the
statutory authority to implement a weighted selection process. The
statute is silent as to how USCIS must select H-1B petitions, or
registrations, to be filed toward the numerical allocations in years of
excess demand; the term ``filed'' as used in INA sec. 214(g)(3), 8
U.S.C. 1184(g)(3), is ambiguous; \48\ and these changes are reasonable
and within DHS's general authority. See INA secs. 103(a), 214(a), and
(c)(1), 8 U.S.C. 1103(a), 1184(a), and (c)(1).
---------------------------------------------------------------------------
\48\ See Walker Macy LLC v. USCIS, 243 F. Supp. 3d 1156, 1170
(D. Or. 2017).
---------------------------------------------------------------------------
Excess demand for numerically limited H-1B cap numbers created a
rush of simultaneous submissions at the beginning of each 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).
DHS acknowledges that 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''),\49\ but
[[Page 60893]]
Congress did not define what it means to ``file'' a petition, or how to
order petitions that are filed during the same timeframe.
---------------------------------------------------------------------------
\49\ 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 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 (c)(1). Such authority includes
prescribing rules to fill statutory gaps.\50\
---------------------------------------------------------------------------
\50\ 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 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 896 (Jan. 31, 2019).\51\
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\51\ 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 896 (Jan. 31, 2019)
(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.\52\ 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.'' \53\ 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.'' \54\ 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.\55\ Congress
provided DHS with the authority to better ensure a fair, orderly, and
efficient allocation of H-1B cap numbers based on reasoned decision
making, including consideration of the overall statutory scheme and
purpose of the classification: the selection of highly skilled and
highly paid nonimmigrants in the United States while protecting the
wages, working conditions and job opportunities of U.S. workers.
---------------------------------------------------------------------------
\52\ See Walker Macy LLC v. USCIS, 243 F. Supp. 3d 1156 (D. Or.
2017).
\53\ Id. at 1174.
\54\ Id. at 1176.
\55\ 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 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.\56\ 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.\57\
---------------------------------------------------------------------------
\56\ 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.'').
\57\ 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 (last visited Nov. 24, 2025).
---------------------------------------------------------------------------
Regarding the comments that referenced recently proposed
legislation to support assertions that this rule exceeds DHS's
authority, DHS notes that proposed legislation that is not enacted is
not a reliable indicator of congressional intent, particularly as it
pertains to previously enacted legislation. See Red Lion Broadcasting
v. FCC, 395 U.S. 367, 381 n.11 (1969) (``unsuccessful attempts at
legislation are not the best of guides to legislative intent.'').
Regarding commenters' assertions that the statute is neither
ambiguous nor silent on allocation methods beyond random selection, DHS
observes that the statute does not expressly refer to allocation by
random selection or address how the numerical allocations should be
administered when demand exceeds the available supply of H-1B visa
numbers. Rather, that is the silence that DHS permissibly filled in
prior rules providing for random selection, and is the same silence
that DHS is permissibly filling in this final rule by implementing a
reasonable selection process, consistent with a key goal of the
program: protecting the wages, working conditions, and job
opportunities of U.S. workers.
DHS recognizes that it considered the issue of cap selection by
wage level in 2019 and concluded at that time that prioritization by
wage level or other bases would require statutory change. DHS
acknowledged that prior statement in footnote 20 in the preamble to the
proposed rule. 90 FR 45986, 45990 (Sept. 24, 2025). DHS reconsidered
the analysis as far back as 2020, and again
[[Page 60894]]
in the context of this rulemaking, and determined that selection by
wage level is consistent with its broad statutory authority and fills a
statutory gap in a way that is consistent with a key goal of the
program.
2. Congressional Intent
Comment: Commenters stated that the wage-based system is reasonable
because it is consistent with the intent of the H-1B program, which is
to help U.S. businesses obtain highly skilled foreign workers to
supplement the domestic workforce. Some commenters said that a
weighted, wage-based selection process would better reflect the
statutory intent to admit ``highly skilled'' workers and help mitigate
negative labor market impacts.
Response: DHS agrees with these comments that the rule is
consistent with congressional intent and statutory language; the
statute is silent as to how USCIS must select H-1B petitions, or
registrations, to be filed toward the numerical allocations in years of
excess demand; the term ``filed'' as used in INA sec. 214(g)(3), 8
U.S.C. 1184(g)(3), is ambiguous; and these changes are reasonable and
within DHS's general authority. DHS, therefore, is relying on its
general statutory authority to implement an H-1B cap selection process
that prioritizes selection generally based on the highest prevailing
wage level that a proffered wage equals or exceeds. See INA secs.
103(a), 214(a), and (c)(1), 8 U.S.C. 1103(a), 1184(a), and (c)(1).
Comment: Some commenters wrote that the proposed weighted selection
process would violate the clear congressional intent of the H-1B
program--to fill existing gaps in the U.S. labor supply in specialized
fields. One commenter said Congress deliberately chose prescriptive
statutory language that forecloses the type of ``executive branch
creativity'' proposed in this rule. Another commenter said that the
rule's weighted selection process would transform the congressionally
established H-1B program into a wage-based preference system, for which
there is no basis in the text of the INA.
Some commenters wrote that Congress designed the H-1B program to be
accessible across wage levels, and that the current random lottery
reflects congressional intent for fairness and equal opportunity. A
comment from multiple organizations stated that Congress and DOL
designed the system to ensure wage parity within an occupation and
within a local labor market, not to stack-rank different workers. Some
commenters said that the H-1B program was created to give U.S.
employers access to specialized workers across all experience levels,
and that the NPRM would undermine that purpose. Another commenter wrote
that the INA requires USCIS to implement a ``fair'' selection process
when petitions exceed the visa cap, and suggested that the proposed
selection process would fail to meet this requirement by
disproportionately disfavoring early-career workers. A commenter wrote
that the H-1B program has ``drifted far from its congressional intent''
and fundamental reforms are needed to ensure the visa holders are not
used to replace U.S. workers with ``cheaper foreign labor.''
Some commenters wrote that DHS's proposed weighting toward more
skilled workers directly conflicts with the statutory definition of
``specialty occupation,'' which is defined in terms of a minimum
requirement of a bachelor's degree for entry into the occupation, and
does not depend on an experience requirement. One of the commenters
said that DHS has no authority to enact its policy preference for
admitting H-1B workers based on their experience as a deciding factor
in selecting their registrations as it is contrary to the statutory
definition.
Another commenter wrote that the NPRM is ``unjustified'' in its
citation to 6 U.S.C. 111(b)(1)(E) as one of its legal bases. The
commenter asserted that this provision was intended as a constraint on
DHS's regulatory power, and that it obligates DHS ``to avoid
initiatives that would weaken economic stability or burden lawful
sectors of American commerce.'' The commenter suggested that the
proposed rule conflicts with this limitation by diminishing, rather
than safeguarding, the nation's overall economic security. The
commenter stated that because the rule ``constrains U.S. employers'
ability to access specialized talent,'' it undermines the statutory
mission Congress assigned to DHS.
Response: DHS disagrees with the commenters' assertions that the
weighted selection process would violate the INA or that DHS lacks the
statutory authority to implement a weighted selection process. The
statute is silent as to how USCIS must select H-1B petitions, or
registrations, to be filed toward the numerical allocations in years of
excess demand; the term ``filed'' as used in INA sec. 214(g)(3), 8
U.S.C. 1184(g)(3), is ambiguous; \58\ and these changes are reasonable
and within DHS's general authority. See INA secs. 103(a), 214(a), and
(c)(1), 8 U.S.C. 1103(a), 1184(a), and (c)(1).
---------------------------------------------------------------------------
\58\ See Walker Macy LLC v. USCIS, 243 F. Supp. 3d 1156, 1170
(D. Or. 2017).
---------------------------------------------------------------------------
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.\59\
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.\60\
---------------------------------------------------------------------------
\59\ 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.'').
\60\ 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 (last visited Nov. 24, 2025).
---------------------------------------------------------------------------
Contrary to commenters' assertions, the weighted selection process
does not preclude access to skilled workers at the lower wage levels or
diminish, rather than safeguard, the nation's overall economic
security. Congress imposed an annual numerical limitation on the number
of foreign workers who may be issued an initial H-1B visa or otherwise
provided initial H-1B status. See INA sec. 214(g)(1)(A), 8 U.S.C.
1184(g)(1)(A). Congress, however, ``left to the discretion of USCIS how
to handle simultaneous submissions'' and ``USCIS has discretion to
decide how best to order those petitions.'' \61\ As DHS explained in
the preamble to the proposed rule (90 FR 45991 (Sept. 24, 2025)), by
engaging in a wage-level-based weighting of registrations for unique
beneficiaries, DHS will 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'
[[Page 60895]]
competitive edge in attracting the `best and the brightest' in the
global labor market,'' consistent with the goals of the H-1B program
and will help to safeguard the nation's overall economic security.\62\
---------------------------------------------------------------------------
\61\ See Walker Macy LLC v. USCIS, 243 F. Supp. 3d 1156, 1176
(D. Or. 2017).
\62\ 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.'').
---------------------------------------------------------------------------
3. Previous H-1B Rulemakings and Related Court Cases
Comment: A commenter wrote that DHS attempted to make a similar
change in 2021 and it was vacated by a Federal court in Chamber of
Commerce v. DHS, No. 4:20-cv-07331, 2021 WL 4198518 (N.D. Cal. Sept.
15, 2021), adding that DHS has not explained how the approach described
in the NPRM would avoid the same legal defects of that previous rule.
Another commenter similarly stated that wage-based selection policies
have faced legal challenges in the past, raising significant questions
about the statutory authority for such a weighted selection process.
Commenters stated that this rule would similarly likely face legal
challenges. One commenter said that DHS should withdraw the rule to
avoid litigation.
Some commenters wrote that while the Walker Macy court decision
upheld USCIS' use of a random lottery for simultaneously submitted
petitions, it does not support introducing wage-based preference as a
new requirement to determine eligibility or priority. Some commenters
wrote that the proposed rule improperly cites Liu v. Mayorkas.\63\ One
of these commenters asserted that Liu ``does not support the agency's
proposed imposition of a thumb-on-the-scale lottery system based on
wage levels,'' and in any case cannot be relied upon because it is a
single, nonbinding district court decision and not controlling law. The
commenter added that the court described the lottery as an antecedent
measure that did not replace the statutory requirement of chronological
allocation; rather, it was a preliminary step taken before the
chronological allocation process begins. Another commenter reasoned
that Liu v. Mayorkas only addressed the narrow challenge to online
registration system implementation and the prevention of multiple
filings, and therefore that using Liu to justify the significant shift
to an unequal, wage-based weighted lottery expands beyond precedent and
what the INA mandates. The commenter added that Liu specifically warned
that agency discretion must adhere to statutory language and purpose.
---------------------------------------------------------------------------
\63\ 588 F. Supp. 3d 43 (D.D.C. 2022).
---------------------------------------------------------------------------
One commenter asserted that this rulemaking represents a
``premature departure'' from the 2024 final rule. 89 FR 7456 (Feb. 2,
2024). The commenter noted that the 2024 final rule was designed to
reduce ``gaming'' the system to ensure that each beneficiary has the
same chance of selection and said that it is premature to change that
framework before evaluating outcomes across the FY 2025 and FY 2026
cycles.
Response: DHS notes that the court in Chamber of Commerce v. DHS,
No. 4:20-cv-07331, 2021 WL 4198518 (N.D. Cal. Sept. 15, 2021), did not
reach the issue of DHS's statutory interpretation and the substantive
merits of the 2021 H-1B Selection Final Rule. Because the court did not
reach the substantive merits of that rulemaking, DHS disagrees with the
commenter's assertion that the 2021 H-1B Selection Final Rule was
inconsistent with DHS's statutory authority or that DHS has not
sufficiently explained how this current rulemaking is consistent with
DHS's statutory authority.
DHS also disagrees with the commenters' assertions that the
weighted selection process would violate the INA or that DHS lacks the
statutory authority to implement a weighted selection process. The
statute is silent as to how USCIS must select H-1B petitions, or
registrations, to be filed toward the numerical allocations in years of
excess demand; the term ``filed'' as used in INA sec. 214(g)(3), 8
U.S.C. 1184(g)(3), is ambiguous; \64\ and these changes are reasonable
and within DHS's general authority. See INA secs. 103(a), 214(a), and
(c)(1), 8 U.S.C. 1103(a), 1184(a), and (c)(1).
---------------------------------------------------------------------------
\64\ See Walker Macy LLC v. USCIS, 243 F. Supp. 3d 1156, 1170
(D. Or. 2017).
---------------------------------------------------------------------------
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 (c)(1), 8
U.S.C. 1103(a), 1184(a)(1), and (c)(1). Such authority includes
prescribing rules to fill statutory gaps.\65\
---------------------------------------------------------------------------
\65\ 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 disagrees with the commenters' assertion that Liu was
improperly cited in the proposed rule. The Liu decision, while not a
binding precedential decision, is persuasive authority pertaining to
DHS's authority to fill the statutory silence and implement a
registration requirement.\66\ The court in Liu correctly recognized
that registration is not a petition, but rather an antecedent
procedural step.\67\ Creation of an antecedent registration
requirement, and random selection of registrations or petitions, as
applicable, are reasonable gap filling regulations just as the current
rulemaking is a reasonable gap filling regulation consistent with the
Secretary's broad statutory authority.
---------------------------------------------------------------------------
\66\ See Liu v. Mayorkas, 588 F. Supp. 3d 43, 55 (D.D.C. 2022)
(explaining that the registration requirement ``makes sense, is
inherently reasonable, and saves the agency and employers time and
money.'').
\67\ Id. (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'').
---------------------------------------------------------------------------
DHS also disagrees with the commenter's assertion that it is
premature to implement a new selection process before at least a couple
of years have passed since the implementation of the beneficiary-
centric selection process. DHS notes that this final rule builds on,
and does not replace, the changes made by the final rule implementing
the beneficiary-centric selection process.\68\ DHS also notes that the
gaming addressed by the final rule implementing the beneficiary-centric
selection process was the submission of multiple registrations for the
same beneficiary by companies that were working together to unfairly
increase a beneficiary's chance of selection. That is a different issue
than what this final rule will address. This final rule builds on the
2024 final rule to continue selecting beneficiaries, such that the
selection process remains beneficiary-centric rather than registration-
centric, but weights each unique beneficiary in
[[Page 60896]]
the registration selection process generally based on the corresponding
wage level that the proffered wage equals or exceeds. Because this
final rule builds on the 2024 final rule, DHS disagrees with the
commenter's assertion that DHS should have waited longer before making
additional changes to the H-1B cap selection process.
---------------------------------------------------------------------------
\68\ See 90 FR at 45993 (``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.'').
---------------------------------------------------------------------------
4. DHS Background and Justification for the Rule
Comment: Some commenters expressed support for DHS's justifications
for the proposed rule and reasoned that the H-1B program does not bring
in high-skilled workers and is instead used to replace U.S. workers at
lower costs. A commenter similarly expressed support for DHS's
justifications, concluding that the current random lottery allows for
program abuse and has become the primary mechanism through which the H-
1B program fails to meet its core mission. Another commenter
acknowledged that given the high volume of H-1B applications USCIS
simultaneously receives exceeding the cap, it is impossible to
determine the order in which they were filed. The commenter stated that
because the original statute cannot be adhered to, DHS's rationale in
proposing an updated selection process is reasonable.
Response: As noted in the H-1B Proclamation, the H-1B program has
been deliberately exploited to replace, rather than supplement, U.S.
workers with lower-paid, lower-skilled labor. 90 FR 46027 (Sept. 24,
2025). The large-scale replacement of U.S. workers through systemic
abuse of the program has undermined both our economic and national
security. 90 FR 46027 (Sept. 24, 2025). The current random selection
process has contributed to the ongoing exploitation of the H-1B program
to benefit certain companies in certain sectors, while crowding out
other companies and legitimate job seekers. For this primary reason,
DHS is implementing 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.
Comment: Some commenters opposed the rule, claiming that the
proposed rule is based on the false premise that foreign workers
displace or take away job opportunities from U.S. workers and depress
wages. For instance, some commenters cited statistics highlighting the
positive impacts H-1B workers make to the economy and showing that H-1B
workers make wages above the median for U.S. workers. Likewise, a
commenter said that the NPRM ignores studies that convincingly show
that workers with H-1B visas earn more than similarly situated U.S.
workers. The commenter added that the proposed rule fails to show why
it is necessary to prioritize more-senior workers given that the
average H-1B visa holder is already earning more than similar U.S.
workers, particularly if doing so risks eroding many of the economic
benefits of the H-1B program. Another commenter said that entry level
roles are not displacing U.S. workers and that removing international
graduates from the applicant pool simply excludes equally qualified
candidates.
Response: DHS disagrees with the commenters. As an initial matter,
DHS does not dispute the general premise that H-1B workers can make
positive contributions to the U.S. economy. DHS sees the value that
highly skilled H-1B workers can bring to the economy, provided that the
H-1B program functions as originally intended, which is to help
employers bring temporary workers into the United States to perform
additive, high-skilled functions to supplement the U.S. workforce and
to help the U.S. economy.
However, the H-1B program is not functioning as intended. Instead,
it is being exploited on a large scale to bring in lower-paid, lower-
skilled workers. As noted in the H-1B Proclamation the H-1B program has
been deliberately exploited to replace, rather than supplement, U.S.
workers with lower-paid, lower-skilled labor. 90 FR 46027 (Sept. 24,
2025). The H-1B Proclamation also indicated that many U.S. tech
companies have laid off their qualified and highly skilled U.S. workers
and simultaneously hired thousands of H-1B workers, and some even
forced their U.S. workers to train the foreign workers. 90 FR 46027
(Sept. 24, 2025). Further, unemployment among recent computer science
and computer engineering graduates has reached some of the highest
levels in the country and has been exacerbated by abuse of the H-1B
visa program. 90 FR 46027 (Sept. 24, 2025). This rule is an important
step to reversing the abuse of the H-1B program. This rule will
disincentivize the existing widespread use of the H-1B program to fill
lower paid or lower skilled positions. Instead, U.S. employers that
might have petitioned for cap-subject H-1B workers to fill relatively
lower-paid, lower-skilled positions, may be incentivized to hire
available and qualified U.S. workers for those positions.
Comment: Many commenters disputed the premise that wage is a proxy
for experience, skill, or education. Several commenters stated that the
proposed rule is based on the false premise that salary alone equates
with value and individuals who earn more in their profession contribute
more to the economy. Some commenters said that DHS failed to provide
empirical support for its core assumptions--that higher wage levels
reliably correlate with higher skills, productivity, or greater
economic benefit to the United States, or that some industries paying
higher wages are more valuable to the economy and society than other
industries that offer more modest salaries. Commenters emphasized that
wage levels do not accurately reflect skill, innovation, potential,
economic contributions, contributions to underserved communities, or
other contributions. One commenter noted that wage levels do not
necessarily reflect skill or economic contribution and cited multiple
studies that demonstrate that using wage level as a proxy for skill
level lacks empirical evidence and may harm both employers and workers.
Some commenters remarked that wages are impacted by a variety of
factors not taken into account in the rule, including different
industries, market, employer size, or geography, and it is an
unreliable proxy for skill and professional level.
A commenter said level I reflects standard entry-level positions
and that removing the level would contradict ``the government's own
system and unfairly redefines ``specialty occupation'' as something
only senior employees can fill.'' Another commenter voiced concern that
the proposed rule would significantly skew H-1B lottery outcomes and
urged DHS to reconsider its impact on lower-wage applicants.
Response: DHS disagrees with these comments and believes that
salary generally is a reasonable proxy for skill level. As stated in
the NPRM, in most cases where the proffered wage equals or exceeds the
prevailing wage, a prevailing wage rate reflecting a higher wage level
is a reasonable proxy for the higher level of skill required for the
position, based on the way prevailing wage determinations are made. 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. DHS believes that the rule
[[Page 60897]]
will incentivize an employer to proffer a higher wage to increase their
chances of selection, but that the employer only would do so if it was
in their economic interest to do so based on the beneficiary's skill
level and relative value to the employer.
DHS acknowledges that aliens may be offered salaries at level I
prevailing wages to work in specialty occupations and may be eligible
for H-1B status. DHS is not removing the possibility of selection for
registrations for positions paid at level I wages through this
rulemaking. However, DHS also believes that, in years of demand
exceeding the annual limits for initial H-1B visas or status grants
subject to the numerical allocations, the current process of purely
random selection does not optimally serve Congress' purpose for the H-
1B program. Instead, in years of excess demand, selection of H-1B cap-
subject petitions generally on the basis of the OEWS prevailing wage
level that the proffered wage equals or exceeds, which generally
correlates to higher skills, is more consistent with the purpose of the
H-1B program and with the administration's goal of improving policies
such that H-1B classification is more likely to be awarded to
petitioners seeking to employ higher-skilled and higher-paid
beneficiaries. The purpose of this rule is to implement a weighted
selection process that will 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.
Comment: Multiple commenters stated that wage levels are inadequate
to compare workers across occupations and that wage levels are intended
to ensure fair pay within occupation and area of intended employment.
Some commenters stated that wage levels are based on experience,
education, and supervisory level within a given occupation and
geographic location, while other commenters stated that wage levels are
more reflective of seniority and career progression rather than skill.
A commenter similarly indicated that the prevailing wage levels were
not intended to be used in this way, but rather meant to ensure that
employing foreign workers does not adversely impact the wages and
working conditions of U.S. workers, and are used by DOL to characterize
career progression.
Some commenters stated opposition to the rule, reasoning that it
would favor lower-skilled and lower-paid positions, contrary to its
stated goal of prioritizing higher-skilled, higher-paid workers. A
commenter referenced how prevailing wage levels are calculated based on
the average wage for similarly employed workers in a specific
occupation and location, which could advantage occupations with lower
entry-level requirements. Similarly, a commenter stated that the use of
wage levels would prioritize lower-skilled, lower-paid workers,
undermining the purpose of the rule, which is to prioritize top talent
with scarce and in-demand skills. Additionally, the commenter stated
that while wage levels correlate well with wages within a specific
occupation, wages between occupations can vary significantly, which was
not taken into account in the proposed rule, and provided several
examples to illustrate this point. Some commenters stated the proposed
selection process could favor seniority in lower-paid occupations over
high-wage, high-skill roles in other fields, and is not supported by
underlying statute, DOL regulations, guidance, or ``the government's
own data.''
While voicing concern about the use of prevailing wage levels in
the proposed weighted selection process, a commenter stated that
applying wage levels across industries was ``inappropriate,'' as DOL's
prevailing wage system accounts for factors, such as job duties,
education, experience, and location, which vary significantly by
occupation. The commenter remarked that high-skilled roles--such as
physicians, lawyers, and professors--may still fall under level I wages
due to standard entry requirements, while other occupations with lower
educational thresholds could qualify for higher wage levels. The
commenter reasoned that this mismatch could lead to inequitable
outcomes, where individuals in lower-paid occupations might receive
more chances in the lottery than those in higher-skilled, higher-paid
roles.
Multiple commenters discussed concerns in associating lower wage
levels with low skill work, noting that more advanced occupations with
more rigorous job requirements may be assigned lower wage levels
compared to less advanced occupations with lower job requirements. For
example, some commenters said that a specialized surgeon earning
$300,000 would be certified as a level I and a Ph.D. working at a high
tech company earning $280,000 would be certified at a level II, whereas
an acupuncturist earning $41,600 is considered level III and a
landscape architect with a $36,000 salary is certified as level IV.
Another commenter noted that a Master's degree requirement for a Job
Zone 4 occupation can result in a level II wage while the same
requirement for a Job Zone 5 occupation can result in a level I wage,
despite the Job Zone 5 position being more advanced. Another commenter
similarly noted that employees in occupations with a higher Specific
Vocational Preparation (SVP) and higher levels of compensation may be
assigned lower prevailing wage levels than occupations with a lower SVP
and said that a position requiring a doctorate and 2-4 years of
experience may have a prevailing wage level I that is set at $200,000
per year, whereas a position in an occupation that has an entry level
requirement of a Bachelor's degree and 0-2 years of experience may
yield a salary of $150,000 per year at prevailing wage level 3. Another
commented noted the different wage levels resulting from differing job
requirements of cardiologists as compared to civil engineers.
Response: DHS disagrees that wage levels are inadequate to compare
workers across occupations. DHS is aware that different occupational
classifications carry differing position and wage requirements and that
wage levels reflect a comparison within an occupation, rather than
across occupations. DHS also recognizes that higher wage levels may
correspond with seniority, but this does not negate the fact that they
also reflect higher skills required for the position.
As noted in the NPRM, DHS believes that salary generally is a
reasonable proxy for skill level.\69\ DHS data shows a correlation
between higher salaries and higher skill and wage levels.\70\ 90 FR
45986, 45990 (Sept. 24, 2025). As a position's required skill level
increases relative to the occupation, so, too, may the wage, and
necessarily, the
[[Page 60898]]
corresponding prevailing wage.\71\ 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 of the alien or value
placed by the employer on the alien's value to the employer. 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.
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\69\ 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.'').
\70\ 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. This
example illustrates that median wages generally increase with the
increase to the LCA wage level. As LCA wage levels increase to
account for a higher-than-usual skill or other job requirements, the
data show the correlation between higher median wages and higher
skill and wage levels.
\71\ DOL, ETA, Prevailing Wage Determination Policy Guidance:
Nonagricultural Immigration Programs (last modified 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).
---------------------------------------------------------------------------
Regarding the occupational examples provided by commenters, DHS
notes that the purpose of this rule is not to prioritize certain
occupations or industries over others. The purpose of this rule is to
implement the numerical cap in a manner that generally favors 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 and in all eligible occupations.
Comment: Some commenters criticized the proposed rule as lacking
clarity and justification, specifically stating that the rule does not
clearly explain how ``wages'' will be defined or measured, whether
future positions are considered, how wage amendments after approval
will be handled, how wage levels will be set or updated, or how part-
time versus full-time work will be treated. A commenter stated that the
rule lacks necessary specificity, as it fails to define key terms
(e.g., how ``wage'' is computed for remote work and for split
worksites), and it offers no credible description of enforcement
mechanisms to prevent wage manipulation, post-selection wage
reductions, or worksite misreporting. The commenter concluded that this
vagueness would invite both litigation and systemic abuse.
Response: DHS disagrees with these commenters' assertions that the
rule lacks clarity and justification and disputes the claims made by
these commenters. DOL regulations define payment of wages for purposes
of satisfying the H-1B required wage. See 20 CFR 655.731(c)(2). This
rule does not change how wages are defined or measured, including how
wages are computed for remote work and split worksites. It is unclear
what the commenter is referring to when stating that the rule does not
clearly explain ``whether future positions are considered,'' but notes
that at the time a registration is submitted, each prospective
petitioner is required to sign an attestation, under penalty of
perjury, that the registration reflects a legitimate job offer (among
other attestations). Regarding the comment claiming a lack of clarity
around how wage amendments after approval will be handled, DHS refers
to new 8 CFR 214.2(h)(10)(iii), finalized in this rule, which allows
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
is 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. Furthermore, DHS does not set or
update wage levels and did not propose to do so through this rule.
Finally, the adjudication of part-time employment is not relevant in
the selection process.
5. Concerns the Rule Is Arbitrary and Capricious
Comment: Some commenters raised concerns that the proposed weighted
selection process's core assumption--that higher salaries correlate
with economic value, innovation potential, and long-term contributions
to U.S. competitiveness--is arbitrary and capricious. A commenter
stated that treating salary as a universal proxy for skill across
occupations and regions is insufficiently substantiated. The commenter
said the change effectively converts a beneficiary-centric lottery into
a salary screen, raising ``arbitrary and capricious'' risk and
disregarding reliance interests of diverse stakeholders. A commenter
stated that every agency has a constitutional duty under the
Administrative Procedure Act (APA) to act in good faith, to prevent
arbitrary discrimination, and to uphold the rule of law, and this rule
fails all three tests. Another commenter noted that OEWS updates trail
the market, so similar offers can receive different weights based on
timing alone. The commenter concluded that elevating salary to the
``decisive lever,'' without robust evidence that it consistently tracks
skill across occupations and regions, raises serious APA concerns.
One commenter said that the proposed rule is arbitrary and
capricious because it overlooks the impact on H-1B petitions for
essential roles in healthcare, education, and other sectors reliant on
early-career professionals. Citing Motor Vehicle Mfrs. Ass'n v. State
Farm, the commenter said DHS failed to consider a key aspect of the
issue, resulting in a policy that harms U.S. businesses and contradicts
the Administration's goals. Other commenters stated that the proposed
rule was arbitrary and capricious because it failed to address the
impact on small and mid-sized employers.
Response: Based on its comprehensive review of the submitted
comments and available evidence, DHS has concluded that, by changing
the selection process from a purely random lottery selection to a
weighted selection process generally based on the OEWS prevailing wage
level that the proffered wage equals or exceeds, DHS will implement the
statute more faithfully to its dominant legislative purpose. DHS
disagrees with the claim that this rule is arbitrary or capricious, or
that it fails to account for potential negative impacts on certain
types of H-1B positions and industries. First, DHS reiterates that the
new weighted selection process will neither exclude nor ``effectively
exclude'' H-1B visa petitions for level I wages. Second, DHS has
determined, after considering possible negative impacts, that 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. DHS believes that the
potential costs of engaging in a wage-level-based weighting of
registrations for unique beneficiaries are outweighed by the benefits
of better ensuring 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.
Comment: A commenter said that the proposed rule ``represents a
substantial policy shift'' from when the agency said in 2019 that
prioritizing H-1B petitions beyond degree-based criteria ``would
require statutory change.'' The commenter noted that under the APA,
agencies are expected to provide a reasoned explanation when changing
interpretations. The commenter claimed DHS did not do so, and that
DHS's change in interpretation is ``[w]ithout a compelling factual
record or new statutory mandate'' and risks being found arbitrary and
capricious. Another commenter said that the proposed rule disregards
established reliance interests for certain industries and fails to
provide a rational basis for its changes, rendering it legally
unsupported and arbitrary.
[[Page 60899]]
Response: DHS recognizes that it considered the issue of cap
selection by wage level in 2019 and concluded at that time that
prioritization by wage level or other bases would require statutory
change. DHS acknowledged that prior statement in footnote 20 in the
preamble to the proposed rule. See 90 FR 45986, 45990 (Sept. 24, 2025).
DHS reconsidered the analysis as far back as 2020, and again in the
context of this rulemaking, and determined that selection by wage level
is consistent with its broad statutory authority and fills a statutory
gap in a way that is consistent with a key goal of the program.
DHS recognizes that some employers may have relied on a random
selection process to prepare for the possibility that the
beneficiary(ies) the employer registered for might be selected. DHS,
however, disagrees with any assertion that a purely random selection
process engenders strong reliance interests or that such reliance
interests outweigh the benefit of a weighted selection process that
better protects the wages, working conditions, and job opportunities of
U.S. workers.
DHS disagrees with the assertion that it did not provide a rational
basis for the rule. As explained in the preamble to the proposed rule,
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. See 90 FR 45986, 45990 (Sept. 24, 2025). 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.\72\ 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.\73\
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\72\ 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.'').
\73\ 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 (last visited Nov. 24, 2025).
---------------------------------------------------------------------------
As DHS explained in the preamble to the proposed rule, by engaging
in a wage-level-based weighting of registrations for unique
beneficiaries, DHS will 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. See 90 FR 45986, 45991 (Sept. 24, 2025). 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 and will help to safeguard the nation's
overall economic security.\74\
---------------------------------------------------------------------------
\74\ 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.'').
---------------------------------------------------------------------------
Comment: A commenter alleged that USCIS failed to explain why it is
changing direction based on its previous findings that foreign
nationals employed in STEM fields are important for businesses and the
economic development of the United States. See 81 FR 13040, 13047-48
(Mar. 11, 2016) (cap gap STEM OPT rule). The commenter concluded that
USCIS failed to explain or justify the reasons for its ``reverse in
course'' in light of those prior findings and policy determinations.
The commenter also claimed that DHS failed to consider the related
reliance interests of employers in employing recent international
student graduates. See Dep't of Homeland Sec. v. Regents of the Univ.
of Ca., 591 U.S. 1, 30 (2020).
Response: DHS disagrees with the commenter's assertion that
statements made nearly one decade ago in the context of a rulemaking
pertaining to F-1 nonimmigrants indicate a change of course in the H-1B
nonimmigrant context. DHS notes that this final rule, which pertains to
the selection of beneficiaries in the H-1B cap selection process, does
not preclude employers from registering H-1B beneficiaries with STEM
degrees in the H-1B cap and, if selected, from filing a petition on
their behalf.
As DHS explained in the preamble to the proposed rule, by engaging
in a wage-level-based weighting of registrations for unique
beneficiaries, DHS will 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. See 90 FR 45986, 45991 (Sept. 24, 2025). As explained
previously in response to other comments, 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, regardless of whether those positions are in STEM related
fields. DHS recognizes that some employers may have relied on a purely
random selection process to prepare for the possibility that the
beneficiary(ies) the employer registered for might be selected. DHS,
however, disagrees with any assertion that a purely random selection
process engenders strong reliance interests or that such reliance
interests outweigh the benefit of a weighted selection process that
better protects the wages, working conditions, and job opportunities of
U.S. workers, including those in STEM related positions.
6. Other Legal Comments
Comment: Some commenters wrote that terminating or changing the
lottery system has broad political and economic consequences that
implicates the major questions doctrine, so clear congressional
authority is required to change the system. Another commenter said that
the rule implicates the major questions doctrine, explaining that when
an agency claims authority to make decisions of ``vast economic and
political significance,'' courts require clear congressional
authorization West Virginia v. EPA, 597 U.S. 697, 723-4 (2022). The
commenter added that fundamentally restructuring how H-1B visas are
allocated constitutes a major question and that the INA's directive
that visas be issued ``in the order'' petitions are filed does not
clearly authorize DHS to create a wage-based preference system.
Response: The major questions doctrine, as articulated in West
Virginia v. EPA, applies in ``extraordinary cases'' where an agency
claims a ``transformative expansion'' of its regulatory authority
without clear congressional authorization. However, the selection
process detailed in this rule does not trigger the major questions
doctrine.
This rule deals with the Secretary's administration and enforcement
of the H-1B numerical allocations--a topic that DHS has long regulated,
including
[[Page 60900]]
via the random selection process that this rule will replace.
Specifically, and as discussed elsewhere in this rule, 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 (c)(1), 8 U.S.C. 1103(a), 1184(a)(1), and
(c)(1). Such authority includes prescribing rules to fill statutory
gaps, which DHS has done for years.\75\
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\75\ 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).
---------------------------------------------------------------------------
In West Virginia v. EPA, the Court found that the U.S.
Environmental Protection Agency (EPA) lacked clear congressional
authorization to implement a generation-shifting approach to regulating
power plant emissions under the Clean Air Act. By contrast, DHS's
authority under the INA and the HSA is broad and clear and falls under
DHS's traditional role. Unlike the EPA's Clean Power Plan, which sought
to restructure the nation's energy grid--a task far outside the EPA's
traditional role--DHS's wage-based selection process is well within its
traditional role of administering and regulating the H-1B visa program.
DHS has long exercised authority over the selection process for H-1B
petitions, and this rule simply refines the selection methodology to
prioritize higher paid and higher skilled workers. This is not a novel
or transformative assertion of authority but rather a refinement of an
existing regulatory function.
In addition, in West Virginia v. EPA, the Court emphasized that the
major questions doctrine applies when an agency's action is
inconsistent with Congress's broader design. Here, the wage-based
weighted selection process aligns with Congress's intent in the INA to
protect the wages, working conditions, and job opportunities of U.S.
workers by ensuring that H-1B workers are not used to undercut domestic
wages. See INA sec. 212(n), 8 U.S.C. 1182(n). The INA explicitly ties
H-1B eligibility to wage requirements contained in the LCA process,
which requires employers to pay the greater of the actual or the
prevailing wage to H-1B workers. The INA also mandates the computation
of prevailing wage levels. See INA sec. 212(p), 8 U.S.C. 1182(p). This
rule builds on this statutory framework by prioritizing higher-wage
workers in the selection process, thereby furthering Congress's goal of
protecting the wages, working conditions, and job opportunities of U.S.
workers.
The Court in West Virginia was concerned with the EPA's assertion
of authority to ``substantially restructure the American energy
market'' under a ``long-extant statute.'' The wage-based H-1B weighted
selection process does not involve a comparable expansion of DHS's
authority. DHS is not asserting new or unheralded powers; it is merely
adjusting the methodology for selecting H-1B registrations (or
petitions) in a way that is consistent with its statutory mandate and
historical practice. The rule does not create a new regulatory regime
or fundamentally alter the structure of the H-1B program.
The majority in West Virginia identified several factors that might
trigger the major questions doctrine, including whether the agency
action involves a matter of ``vast economic and political
significance'' or represents an ``unheralded power.'' None of those
factors apply here. The wage-based weighted selection process does not
have vast economic or political significance; it affects only the
method by which DHS selects H-1B registrations (or petitions) under the
statutory cap. While the rule may be significant to those U.S. workers
who have had to compete with lower-paid H-1B workers who have dominated
the current random selection process, and will help to attract the
``best and brightest'' to the United States by increasing the chance of
selection for higher-skilled, higher-paid aliens, the rule's overall
economic impact is not vast. And this rule does not assert a new power;
DHS has long exercised authority over the H-1B selection process and
has previously modified that process through rulemakings.
While the wage-based H-1B selection process is economically
significant under Executive Order (E.O.) 12866, it does not rise to the
level of ``vast economic and political significance'' required to
trigger the major questions doctrine. The threshold for economic
significance under E.O. 12866 is relatively low ($100 million annual
impact), whereas the major questions doctrine requires a much higher
level of economic and political impact. In West Virginia v. EPA, the
Court applied the doctrine to the EPA's Clean Power Plan because it
sought to restructure the entire energy grid--a matter of extraordinary
economic and political significance. By contrast, DHS's wage-based H-1B
weighted selection process does not involve a comparable restructuring
of the economy or labor market. The rule affects only the selection
methodology for H-1B registrations (or petitions), a discrete
regulatory function within DHS's traditional authority. The wage-based
weighted selection process is narrowly tailored to incentivize
employers seeking initial classification of H-1B cap-subject aliens to
offer higher wages, or to petition for positions requiring higher
skills and higher-skilled aliens, that are commensurate with higher
wage levels. It affects the odds of selection for a program that has
long been over-subscribed and under which selection was previously
random and never guaranteed. It does not fundamentally alter the
structure of the H-1B program or the broader labor market. While the
rule may shift the composition of H-1B workers toward higher-wage
positions, it does not impose new substantive requirements on employers
or workers beyond the existing statutory framework.
Comment: A commenter wrote that DHS has not demonstrated that it
has considered and ruled out alternative methods to accomplish its
goals, which is required by the APA. The commenter wrote that ``[t]he
only other means DHS appears to have considered is the `ranking' model
the agency pursued in 2020, which would have had even more drastic
impacts on early-career talent, and was vacated in court and later
withdrawn.''
Some commenters expressed concern that the proposed rule could make
the program more susceptible to legal challenges. One commenter stated
that legal challenges regarding statutory authority for the weighted
selection approach would be likely, and litigation would leave
employers with lingering uncertainty about whether the process might
``change midstream.'' The commenter wrote that ``[e]mployers begin
planning months in advance of the H-1B registration window, and it is
critical for businesses to be able to fulfill talent needs in their
operations with confidence that the rules will not change midstream.
Expected litigation could cause companies to lose global talent to
other countries, especially in the midst of competition for dominance
in AI and other critical technologies.''
Response: DHS agrees that it discussed in the preamble to the NPRM
the alternative of proposing the
[[Page 60901]]
methodology from the 2020 H-1B Selection NPRM and explained why it
instead chose to propose a weighted selection process. See 90 FR 45986,
46013 (Sept. 24, 2025). DHS also requested potential alternatives to
the proposed weighted selection process. 90 FR at 46013. The commenter,
however, did not identify alternatives for DHS to consider and instead
asserted that the statute is unambiguous and that DHS is not permitted
to establish a prioritization scheme through rulemaking. (See
subsequent Section III F.1 Alternatives to the Proposed Weighted
Selection Process for DHS' consideration of alternatives suggested by
other commenters.)
DHS disagrees with the commenter's assertion that DHS should not
finalize the rule because it may lead to litigation challenging the
rule and uncertainty as to the cap selection process while litigation
is pending. DHS does not believe that the threat of future litigation,
and speculation as to the ultimate outcome of any future litigation
pertaining to the final rule, is a reasonable basis not to finalize a
rule that will improve the administration of the H-1B cap selection
process and better protect the wages, working conditions, and job
opportunities of U.S. workers.
D. Proposed Changes to the Registration Process for H-1B Cap-Subject
Petitions
1. Proposed Weighted Selection Process
Comment: Some commenters expressed their support for the proposed
weighted selection process. For instance, a commenter stated their
support for maintaining opportunities across all wage levels. The
commenter remarked that while the proposed rule prioritizes higher wage
levels, it still would allow employers offering positions at wage
levels I and II to participate in the H-1B program. The commenter
concluded that this approach would help ensure the program remains
accessible to a wide range of employers and industries that require
specialized knowledge but may not offer top-tier wages. Another
commenter stated support for the weighted selection process and
particularly commented on the use of OEWS wage levels for a SOC code
within a particular area of intended employment as an effective
mechanism for wage and geographic normalization. The commenter
explained that this ``astutely avoids an unfair advantage'' for
employers in certain areas.
Response: DHS agrees that the weighted selection approach will help
ensure the program remains accessible to a wide range of employers and
industries. The purpose of this rule is to implement a weighted
selection process that will 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.
DHS also agrees that the use of OEWS wage levels is effective for wage
and geographic normalization.
Comment: Some commenters asserted that the proposed weighting (four
times chance for level IV, three times chance for level III, two times
chance for level II, and one times chance for level I) is arbitrary.
One commenter said the weighting appears to simply reflect the numbers
assigned to the four wage levels, not workers' relative salaries, skill
levels, or economic value. Another such commenter added that the usage
of 4x, 3x, 2x, and 1x weighting lacks evidence demonstrating that the
multiples would meet the H-1B program's goals, address integrity gaps
left unresolved by previous reform, and protect U.S. workers.
Response: DHS disagrees that the proposed weights are arbitrary.
The multiples of 4 times, 3 times, and 2 times, correspond to wage
levels IV, III, and II, respectively, as selected on the registration
form (or petition if registration is suspended). It is reasonable to
tie the probability of an alien's chances of selection in the lottery
to the highest OEWS wage level that the proffered salary equals or
exceeds because salary is generally a reasonable proxy for skill
level.\76\ DHS data show a correlation between higher salaries and
higher skill and wage levels.\77\ As a position's required skill level
increases relative to the occupation, so too, may the wage level, and
necessarily, the corresponding prevailing wage. 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. The proposed weighting scheme was chosen because it
would achieve the policy goals of increasing the average skill level of
the H-1B worker, thus better protecting U.S. workers, while balancing
that goal with the competing policy goal of ensuring that U.S.
employers who are unable to pay a proffered wage that corresponds to a
higher wage level are not precluded from the opportunity to obtain H-1B
workers if otherwise eligible. DHS believes that this rule
appropriately balances the interests of U.S. workers with the interests
of petitioning employers and the alien workers they seek to employ as
H-1B nonimmigrants.
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\76\ 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.'').
\77\ DHS provided the following example in the NPRM: 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. See 90 FR 45986, 45990 (Sept. 24, 2025).
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2. Required Information From Petitioners
a. OEWS Wage Level
Comment: A commenter asked about the timing of the wage level
``lock-in.'' Specifically, the commenter said that the rule requires
that ``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.'' See 90 FR 45986, 45993 (Sept.
24, 2025). The commenter asked DHS to clarify which data controls if
OEWS wage data is updated between registration and petition filing,
which can be 90 or more days apart. The commenter also asked how
registrants should account for this uncertainty when making initial
wage level selections.
A few commenters expressed concerns about potential consequences if
OEWS prevailing wage data were to change in between the time of
registration submission and petition filing. A commenter stated that
OEWS updates can lag, which could result in identical job offers that
straddle release cycles to receive different weights for reasons
unrelated to skill, producing arbitrary outcomes. Another commenter
discussed annual wage appreciation that is effective for their position
each May, which could affect the wage level selected, but would not be
anticipated or reflected in their March petition. The commenter
expressed concerns about being penalized if they submit lower or higher
wage estimate of their future wage. The commenter suggested more
flexible prevailing wage levels, rather than a fixed wage level. A
commenter expressed that requiring employers to commit to specific wage
levels during registration, then verifying that petition wages match
registration wages months
[[Page 60902]]
later, would create multiple opportunities for technical violations
that have nothing to do with fraud or abuse but reflect the reality of
how hiring processes work in practice.
Response: The OEWS wage level selected on the petition must reflect
the corresponding OEWS wage level as of the date that the underlying
registration was submitted, unless registration is suspended. In other
words, in years that registration is required, the OEWS wage data used
to determine the wage level on the registration is ``locked in'' as of
the date of the registration. As clearly stated in the NPRM 90 FR
45986, 45993 (Sept. 24, 2025) and finalized at new 8 CFR
214.2(h)(8)(iii)(D)(1), 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 (emphasis added).
Specifically, as finalized, the revisions to Form I-129 direct
petitioners to follow the form instructions to select the appropriate
wage level box in response to question 2, Section 3.\78\ The revisions
to the Form I-129 instructions list the following as required initial
evidence if filing for an H-1B cap petition in a year that registration
is required: ``Evidence of the basis of the wage level selected on the
registration. Such evidence could include, but is not limited to, a
printout from the DOL [Office of Foreign Labor Certification] (OFLC)
Wage Search website for the beneficiary's SOC code and area(s) of
intended employment as of the date of registration'' (emphasis added).
The revisions to the Form I-129 instructions further state: ``The OEWS
wage level selected must reflect the corresponding OEWS wage level as
of the date that the registration underlying the petition was
submitted'' (emphasis added). 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.'' Thus,
DHS believes it is sufficiently clear that the appropriate wage level
selected in response to Section 3, question 2 pertains to OEWS wage
data that was current as of the date of registration. Even if OEWS wage
data changes in between the registration and the petition filing, the
Form I-129 petition (i.e., the appropriate wage level box selected on
question 2, Section 3) should still reflect information that was
current as of the time of registration. For example, if the proffered
wage at the time of registration corresponded to a level IV wage, but a
subsequent change in OEWS wage data resulted in the same proffered wage
corresponding to a level III wage at the time of filing the petition,
the petitioner would select the level IV wage box in response to
Section 3, question 2, on the Form I-129 petition. However, the
petitioner may wish to submit an explanation of any relevant changes in
OEWS wage data with the petition.
---------------------------------------------------------------------------
\78\ All supporting documents to the NPRM, including the
proposed revisions to the form instructions, are available in the
docket at: https://www.regulations.gov/docket/USCIS-2025-0040/document.
---------------------------------------------------------------------------
Regarding the commenters' concerns about committing to the OEWS
wage level at the time of registration and the suggestion for more
flexible prevailing wage levels, DHS must collect the wage information
at the time of registration, prior to petition filing in April, in
order to weight and select registrations. DHS does not see another
viable solution for collecting wage information at a later date or
allowing flexible wage levels. Additionally, under the current
registration process, registrants must attest that the registration
reflects a legitimate job offer. Through this rule making, DHS is
modifying this language to require registrants certify that the
registration reflects a bona fide job offer and codifying that ``a
valid registration must represent a bona fide job offer'' at new 8 CFR
214.2(h)(10)(ii).\79\ A bona fide job offer is one that exists as
described on the registration and petition and in which the employer
intends to employ the beneficiary. As such, DHS believes that
registrants (or petitioners) should be able to accurately reflect the
corresponding wage level at the time of registration.
---------------------------------------------------------------------------
\79\ As stated in the NPRM, in this context, a ``legitimate job
offer'' and a ``bona fide job offer'' mean the same thing. DHS is
finalizing 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.''
---------------------------------------------------------------------------
Comment: A commenter stated that it is unclear whether DHS will
rely on the wage level reflected on the LCA or the OEWS level that the
offered wage equals or exceeds. The commenter requested DHS confirm
this point.
Response: DHS disagrees that the rule is unclear on which wage
level will be the basis for weighting in the selection process. The
rule clearly states that, on the registration (or petition, in the
event of suspended registration), the registrant (or petitioner, if
applicable) must select the highest OEWS wage level that the
beneficiary's proffered wage equals or exceeds for the relevant SOC
code in the area(s) of intended employment.
The wage level selected on the LCA may differ from the appropriate
wage level selected on the registration as a result of this rule
allowing registrants to choose the highest OEWS wage level that the
beneficiary's proffered wage generally equals or exceeds for the
relevant SOC code in the area(s) of intended employment. It is
important to distinguish the appropriate wage level selected for
purposes of the registration with the wage level selected for purposes
of the LCA. The wage level and prevailing wage requirements are part of
the LCA process regulated by DOL. A petitioner is required to file an
LCA with DOL attesting that H-1B nonimmigrants will be paid either the
actual wage paid by the employer to all other individuals with similar
experience and qualifications for the specific employment in question
or the prevailing wage for the occupational classification in the area
of intended employment, whichever is greater. See INA secs.
212(n)(1)(A)(i) through (ii), 8 U.S.C. 1182(n)(1)(A)(i) through (ii);
20 CFR part 655, subpart H. Petitioners must follow DOL instructions to
specify the appropriate wage level for the requirements of the offered
position for purposes of the LCA.\80\
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\80\ See DOL, Labor Condition Application for H-1B, H-1B1 and E-
3 Nonimmigrant Workers, Form ETA-9035CP--General Instructions for
the 9035 & 9035E, https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/Form%20ETA-9035CP%20Instructions_exp.%2010.31.2027.pdf (expires
Oct. 31, 2027).
---------------------------------------------------------------------------
Comment: A commenter stated that allowing employers to interpret
key factors that determine the prevailing wage (e.g., employers
interpreting the occupation and wage level differently and granting
employers substantial front-end discretion over choices when they have
conflicts of interest) introduces errors. The commenter claimed that
this can be remedied with stronger back-end enforcement. The commenter
provided examples of H-1B data from two large H-1B employers that they
state demonstrate the failure of prevailing wage regulations in
achieving their goal of protecting workers, labor standards, and labor
market integrity.
Response: DHS recognizes that allowing employers to select the
factors (i.e., the SOC code, wage level, and location) that determine
prevailing wage may introduce some errors. However, DHS does not see
another viable solution for allowing petitioners to self-select such
factors at the registration stage. DHS notes that, as part of the DOL
process, petitioners already select the factors determining the
prevailing wage and include such information on the LCA. DOL must
certify the application within 7 days unless the application is
incomplete or contains obvious inaccuracies. See INA sec. 212(n)(1), 8
[[Page 60903]]
U.S.C. 1182(n)(1). If the LCA is certified, the petitioner may file a
petition with USCIS based on the certified LCA. See INA sec.
101(a)(15)(H)(i)(b), 8 U.S.C. 1101(a)(15)(H)(i)(b). Further, both DOL
and DHS already have several integrity measures in place to ensure that
employers follow the prevailing wage regulations and make truthful
attestations on the LCA, registration, and petition. See 20 CFR
655.705(b); 8 CFR 214.2(h)(4)(i)(B)(1)(ii); 8 CFR 214.2(h)(10)(ii) and
(11)(iii)(A)(2).
DHS agrees with the need for stronger back-end enforcement. This
rule finalizes new integrity measures to guard against petitioners
intentionally misclassifying the occupation, for example, by requiring
the H-1B petition filed after registration selection to contain and be
supported by the same position information and contain 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. See new 8 CFR 214.2(h)(8)(iii)(D)(1). The rule
also finalizes a provision allowing USCIS to deny a subsequent new or
amended petition in certain circumstances suggesting an attempt to
unfairly increase the odds of selection. See new 8 CFR
214.2(h)(10)(iii). These new provisions will complement existing
integrity provisions and enhance DHS's back-end enforcement.
i. Prevailing Wage Not Based on OEWS or No Current OEWS Prevailing Wage
Information Available
Comment: A few commenters stated that the rule would have a
negative impact on petitioners using alternative wage sources, such as
private wage surveys, collective bargaining agreements (CBAs), Service
Contract Act (SCA) wage determinations, or other legitimate sources.
For instance, a commenter stated that where employers rely on CBAs or
legitimate private surveys, if the proffered wage falls below OEWS
level I, the registration is forced into level I--reducing selection
weight even for highly specialized jobs. The commenter said this
punishes lawful, collectively bargained structures and sectors with
atypical wage curves. A different commenter similarly expressed
concerns that the rule does not treat wages arising out of alternative
sources on equal footing. Another commenter wrote that the proposed
rule conflicts with the DOL's regulations defining prevailing wages
based on collective bargaining agreements and SCA wage determinations
because it would render those wage determinations ``disadvantageous
when they are correlated with a level I or level II OEWS wage rate
under the corresponding SOC-listed occupation. As a result, USCIS'
proposed rule undercuts those prevailing wage rates and deems them
detrimental for employers seeking to employ H-1B workers whose wages
are subject to collective bargaining or SCA wage rates.''
Response: When determining how to rank and select registrations (or
petitions, as applicable) by wage level, DHS decided to use OEWS
prevailing wage levels because they are the most comprehensive and
objective source for comparing wages. The OEWS program produces
employment and wage estimates annually for approximately 830
occupations.\81\ Additionally, most registrants and petitioners are
familiar with the OEWS wage levels since they are used by DOL and have
been used in the foreign labor certification process since 1997.\82\
---------------------------------------------------------------------------
\81\ BLS, DOL, Occupational Employment and Wage Statistics,
https://www.bls.gov/oes/ (last visited Nov. 24, 2025).
\82\ See Prevailing Wage Policy for Nonagricultural Immigration
Programs, General Administration Letter No. 2-98 (GAL 2-98) (Oct.
31, 1997), available at https://www.dol.gov/agencies/eta/advisories/general-administration-letter-no-2-98, https://www.dol.gov/sites/dolgov/files/ETA/advisories/GAL/1997/GAL2-98_attach.pdf.
---------------------------------------------------------------------------
OEWS prevailing wage level data is publicly available through DOL's
Foreign Labor Application Gateway (FLAG) system. Wages based on
alternate sources, such as private wage surveys, collective bargaining
agreements, and SCA wage determinations, are not always publicly
available and do not always have four wage levels.
DHS disagrees with the assertions that petitioners that use non-
OEWS wage sources would be disadvantaged by the rule. Petitioners may
continue to use private wage surveys and other alternative wage
sources, if they choose to do so, to establish that they will be paying
the beneficiary a required wage. This rule, however, will weight
registrations (or petitions, as applicable) generally based on the
highest OEWS wage level that the proffered wage equals or exceeds as
OEWS wage data is the most comprehensive and objective source for
comparing wages.\83\ Petitioners that use a private wage survey may
choose to increase the proffered wages of their prospective
beneficiaries in order to increase their chances of selection.
---------------------------------------------------------------------------
\83\ BLS, DOL, Occupational Employment and Wage Statistics,
Frequently Asked Questions, https://www.bls.gov/oes/
oes_ques.htm#:~:text=The%20OEWS%20program%20produces%20employment,non
metropolitan%20areas%20in%20each%20State (``The OEWS program is the
only comprehensive source of regularly produced occupational
employment and wage rate information for the U.S. economy, as well
as States, the District of Columbia, Guam, Puerto Rico, the U.S.
Virgin Islands, and all metropolitan and nonmetropolitan areas in
each State.'') (last visited Dec. 11, 2025).
---------------------------------------------------------------------------
To help avoid disadvantaging prospective petitioners that rely on a
private wage survey or other alternative sources to determine the
required wage level for the proffered position for registration
purposes, new 8 CFR 214.2(h)(8)(iii)(A)(4)(i) states that registrants
relying on a prevailing wage that is not based on the OEWS survey would
select the ``wage level I'' box on the registration form if the
proffered wage were less than the corresponding level I OEWS wage. DHS
expects that all petitioners offering a wage lower than the OEWS wage
level I wage will be using another legitimate source other than the
OEWS survey. However, DHS deliberately chose to group these
registrations together with level I registrations so that petitioners
relying on non-OEWS sources would have a better chance of selection
than if there were an additional category below level I and these
registrations would have been weighted below level I registrations.
Comment: A commenter stated that although 8 CFR
214.2(h)(8)(iii)(A)(4)(i) requires registrants to follow DOL guidance
on prevailing wage determinations (PWDs) when no OEWS prevailing wage
information is available, the rule does not specify which version of
the guidance applies.
Response: As indicated in the NPRM, in the limited instance where
there is no current OEWS prevailing wage information for the proffered
position, the registrant would follow DOL guidance on PWDs to determine
which OEWS wage level to select on the registration. 90 FR 45986, 45993
(Sept. 24, 2025). The sentence included a footnote to the proper
guidance in effect as of the time of publication of the NPRM: DOL,
Employment and Training Administration (ETA), Prevailing Wage
Determination Policy Guidance: Nonagricultural Immigration Programs
(last modified Nov. 2009), https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/NPWHC_Guidance_Revised_11_2009.pdf. As of the time of
publication of this final rule, this is still the guidance in effect
that registrants should use, however, in the event DOL updates their
guidance in the future, registrants should use any updated version of
the Prevailing Wage Determination guidance published by DOL.
[[Page 60904]]
ii. Supporting Evidence of Basis of Wage Level
Comment: A commenter requested clarification on the requirement 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.'' The commenter asked what specific evidence
would be accepted, asking for example if a printout from the DOL OFLC
Wage Search website would suffice in all cases, and asking how
petitioners should document determinations made using alternative
methodologies when OEWS data is unavailable.
Response: 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. See new 8 CFR
214.2(h)(8)(iii)(D)(1). As noted in the NPRM, 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. 90 FR 45986, 45993 (Sept. 24,
2025). Where an alternate wage source is used, a petitioner should
submit evidence that is appropriate for that source, such as a private
wage source or collective bargaining agreement.
iii. Lowest Equivalent OEWS Wage Level When Beneficiary Would Work in
Multiple Locations or Positions
Comment: A commenter expressed support for the proposals to use the
lowest applicable wage or location for multi-site roles, and to treat
multiple registrations for the same beneficiary by the lowest wage
level, saying these proposals will address abuse patterns. Conversely,
a commenter stated that the proposal directing employers to choose the
lowest level of multiple locations that the proffered wage meets or
exceeds undermines the policy objective of rewarding higher wages and
skills.
Response: DHS agrees with the commenter that said using the lowest
applicable wage level if the beneficiary will work in multiple
locations makes the most sense to preserve program integrity. DHS
disagrees with the commenter that said that this requirement undermines
the policy objective of the rule. As noted in the NPRM, this
requirement removes a potential incentive to inflate wage levels
through strategic location or position choices and helps ensure
integrity of the selection process. 90 FR 45986, 45993 (Sept. 24,
2025). While a major policy objective of the rule is to favor the
allocation of H-1B visas to higher-skilled and higher-paid aliens, it
is also important that DHS not jeopardize program integrity.
Comment: Regarding agents placing beneficiaries in multiple
positions, a commenter asked how they should calculate and document the
``lowest corresponding OEWS wage level'' when positions may have
different SOC codes, different locations, and different wage
structures.
Response: As indicated in the NPRM, 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. 90 FR
45986, 45992-93 (Sept. 24, 2025). 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. See new 8
CFR 214.2(h)(8)(iii)(D)(1). As noted in the NPRM, 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. 90 FR 45986, 45993 (Sept. 24,
2025). Such evidence may also include a separate print-out for each
location, and each position if there are multiple positions. USCIS will
consider all submitted evidence, in addition to the information
contained in the registration, LCA, and petition, to determine if the
registrant indeed selected the lowest corresponding OEWS wage level
among the multiple locations or positions.
iv. Lowest OEWS Wage Level Among All of the Registrations Submitted on
a Beneficiary's Behalf (if the Registrations Have Different Wage
Levels)
Comment: Expressing concern about ``loopholes'' in the rule, a
commenter recommended, in cases where multiple employers petition on
behalf of the same individual, only the petitions at the highest wage
level should be considered, and to require beneficiaries to remain at
the same position title and receive at least the same wages as shown in
their application for the duration of their visa.
Conversely, a commenter stated that the proposal for USCIS to
assign a wage level to a beneficiary based on the lowest OEWS wage
level among all registrations for a beneficiary will erase legitimate
higher wage offers and give controlling significance to the lowest bid.
Another commenter said that this approach would penalize a legitimate
employer with a level IV wage, and requested that DHS consider the
highest OEWS wage level among the registrations to avoid the
``cascading effect that would otherwise allow one lower-wage
registration to dilute the merit-based weighting for all employers
associated with the same worker.'' Another commenter discussed the
situation where multiple entries are created for registrants who file
H-1B petitions at wage level II and the resulting dilution of any
advantage of higher wage level registrants. Further, the commenter
discussed handling of beneficiaries with multiple offers and where the
lower-level offer will determine the lottery positioning of all of that
beneficiary's petitions. Another commenter said that the rule creates
inequity for multi-location employers, pointing to proposed 8 CFR
214.2(h)(8)(iii)(A)(4)(i), which says that if a position involves
multiple worksites, the employer must base the registration on the
lowest applicable wage level across all sites. The commenter explained
that a software engineer dividing time between Atlanta (level III) and
Birmingham (level II) must therefore be registered at level II. The
commenter said that this ``lowest-common-denominator'' rule penalizes
universities, hospitals, regional service firms, and manufacturers that
maintain distributed or hybrid operations, forcing them into lower-
weighted categories and further reducing selection odds.
Response: DHS is aware that multiple employers may register or
petition on behalf of the same individual at various corresponding wage
levels. However, rather than assign the highest wage level among
multiple registrations as the commenters suggest, DHS believes that
assigning the lowest wage level is preferable because it would create
less of an incentive for unscrupulous employers to try to game the
system. In this scenario, a beneficiary for whom a level I registration
and a level IV registration have been submitted will 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.
DHS is aware of the potential that a registration with a wage
corresponding to a lower wage level would negatively impact other
registrations for the same beneficiary at higher wage levels, including
a legitimate employer's registration for a beneficiary with a level IV
wage. However, it is expected that
[[Page 60905]]
registrants will communicate with beneficiaries to make informed
decisions regarding whether other companies have submitted
registrations on their behalf, and under which corresponding wage
level.
Regarding multi-location employers, DHS does not agree that this
rule will generally penalize the list of employer types that the
commenter indicated. Employers should be aware that, if they are
placing beneficiaries at multiple locations, DHS will assign the
registration the lowest corresponding wage level for selection
purposes. DHS does not believe that this is a common enough scenario
that it is worth leaving open a loophole for unscrupulous employers to
try to game the system.
v. Other Comments Related to OEWS Wage Data
Comment: Some commenters expressed other concerns about perceived
inadequacies of OEWS data and survey methodology. One commenter raised
concerns about relying solely on OEWS data to determine wage levels,
noting it could lack detail for emerging, specialized, or hybrid roles.
Another commenter raised concerns about OEWS survey methodology, saying
that urban respondents outnumber rural respondents, artificially
inflating wages for many positions. The commenter also said that the
voluntary nature of DOL's wage survey makes it highly unlikely that
there will be an accurate depiction of physician wage levels across all
specialties and all geographic areas. A different commenter wrote that
the prevailing wage system concentrates opportunities in lower-wage
localities or remote arrangements, disadvantaging large cities that
serve as innovation hubs. This commenter wrote that a prevailing wage
framework should better align level I wages ``to the true entry level
percentile for the occupation and locality'' and should allow
alternative wage sources when OEWS data for a locality are skewed by
senior level concentrations.
Response: DHS recognizes that the OEWS system has certain data
limitations but disagrees that an alternative method of calculating
wages is necessary to implement a fair and efficient weighted H-1B cap
selection process. DHS notes that DOL guidance on prevailing wage
determinations provides for use of the OEWS survey.\84\ Additionally,
DHS believes that OEWS provides the most comprehensive and objective
publicly available source for obtaining prevailing wage information
and, thus, is still the best available option to serve the overarching
goal of this rule. Further, DHS believes that incorporating non-OEWS
wage sources into the registration selection process would add
unnecessary complexity into the process and frustrate the goal of
administering the cap selection process in an efficient and effective
manner.
---------------------------------------------------------------------------
\84\ DOL, ETA, Prevailing Wage Determination Policy Guidance:
Nonagricultural Immigration Programs (last modified Nov. 2009),
https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/NPWHC_Guidance_Revised_11_2009.pdf.
---------------------------------------------------------------------------
vi. SOC Code of Proffered Position
Comment: A commenter said the proposed rule assumes that SOC codes
can serve as a precise proxy for labor market value and skill
differentiation, but in practice SOC codes are broad occupational
groupings developed for statistical tracking, not for making nuanced
distinctions in immigration benefit allocation. For example, the
commenter wrote that the SOC classification ``Attorney'' encompasses
all practice areas regardless of specialization, meaning a newly
licensed attorney in a small firm and a highly experienced attorney in
a specialized practice are treated identically, which would create
distortions when wage-based weighting is applied without regard to
function or expertise.
Another commenter wrote that there are significant ambiguities in
choosing SOC codes, as many positions fall between two or three SOC
codes, and beneficiaries often have interdisciplinary educational
backgrounds, which could create inconsistencies in how wage levels and
lottery weights are applied. Similarly, a commenter stated that because
multiple roles can map to multiple plausible SOC codes with different
wage ladders, the SOC choice will directly affect selection odds, which
increases the stakes and the chance of misclassification disputes. A
couple of commenters discussed inconsistencies between how employers
classify occupations using SOC codes. A commenter stated that the
proposed wage level construct is misleading because it does not allow
for effective comparison or ordering for, or among, specific or
detailed occupations.
Response: While DHS understands that SOC codes sometimes provide
broad occupational groupings that may not allow for nuances in certain
occupations, DHS does not see a viable alternative for sorting and
classifying occupations for the purpose of this rule. Employers already
must select the appropriate SOC code when submitting an LCA and when
filing an H-1B petition, and this rule relies on that longstanding
practice to implement a process to efficiently and effectively
determine the corresponding wage level for purpose of weighting
registrations or petitions, as applicable. DHS disagrees with the
commenter's assertion that a newly experienced attorney would be
treated the same as a specialized and experienced attorney. DHS
believes that employers will offer a wage commensurate with the
difference in experience and specialization, such that it is more
likely that an experienced, specialized attorney would be paid a wage
that corresponds to a higher wage level than a newly experienced
attorney and have a greater chance of selection based on this final
rule.
b. Area of Intended Employment
Comment: Multiple commenters stated that wage levels based on
geographic location could lead to inconsistent outcomes, where the same
salary places applicants in different wage levels depending on the
region. A commenter stated that there is a risk of introducing
inequitable geographic and sectoral consequences because prevailing
wage data are inconsistent across metropolitan areas and occupational
codes, causing firms in lower-cost regions to potentially face
artificially lower selection odds than when offering competitive wages
relative to local market.
Some commenters claimed that the proposed rule would
disproportionately disadvantage applicants in high-cost areas, even
when their compensation and skill level are equivalent to those in
lower-cost regions. Some commenters said that cost-of-living
differences across regions create structural bias where employers in
high-cost metropolitan areas struggle to meet wage thresholds while
those in lower-cost regions can more easily offer higher wage levels
for similar roles. Similarly, a commenter stated that a salary-based
weighting system would benefit outsourcing firms in lower-cost areas
while hurting start-ups and other tech companies in high-cost hubs like
Silicon Valley. One commenter stated that the proposed wage weighting
would punish ``agglomeration centers'' and reward lower-cost regions,
``skewing outcomes away from where spillovers and mentorship are
largest.'' Another commenter suggested that the proposed weighting
could penalize applicants in ``innovation-driven regions,'' such as San
Francisco and Seattle where employees earn higher wages due to living
costs and competitive markets.
In contrast, a few commenters stated that the proposed rule would
favor companies in high-cost areas, where
[[Page 60906]]
higher salaries are more common, over those in lower-cost areas. A
commenter expressed concern that a pure wage-based model would unfairly
penalize employers in States with lower costs of living, even if they
are paying fair, market-competitive salaries locally. A commenter
expressed concern that the proposed rule could create geographic bias
by favoring workers in high-cost metropolitan areas over those in rural
or lower-cost regions, potentially undermining national economic
development goals. A commenter said this geographic distortion could
lead to inequities and make the program appear arbitrary.
Response: DHS disagrees that this rule will disproportionately
disadvantage or advantage registrants in certain geographic areas. The
rule neutralizes geographic differences in salary amounts by taking
into account the area of intended employment when weighting
registrations. Particularly, USCIS will select H-1B registrations
generally based on the highest OEWS prevailing wage level that the
proffered wage equals or exceeds for the relevant SOC code and area(s)
of intended employment. In weighting according to the equivalent wage
level, which already considers the area(s) of intended employment, the
final rule makes it so that registrations for the same wage level will
be weighted the same regardless of whether their proffered wages are
different owing to their areas of intended employment.
Comment: A commenter expressed concern that the prevailing wage
system would set entry-level thresholds too high in certain regions,
creating barriers for junior international workers and misaligning
wages with real cost-of-living. Another commenter said that while they
support the wage level concept, they are concerned it could
disadvantage workers at mid-sized companies who perform similar work as
those at larger firms but receive lower pay due to location-based
constraints, potentially leading to unfair outcomes in visa
eligibility. Another commenter said that current wage tiers are too low
to reflect market conditions, especially in certain regions. Another
commenter stated that the NPRM does not provide supporting analysis of
economic or regional impacts across metropolitan and nonmetropolitan
areas. The commenter predicted the proposed wage-level weighting system
would affect different occupations and geographic regions in different
ways due to inequities that arise from local wage variations. The
commenter stated the inequities in wage variations would impact lower
nominal wage industries like healthcare, nonprofit research, and early-
stage innovation, and would reduce the industry diversity and
geographic reach of the H-1B program.
Response: DHS disagrees that this rule will favor companies in
certain areas since the rule neutralizes geographic differences in
salary amounts by taking into account the area of intended employment
when weighting registrations. The OEWS prevailing wage inherently
accounts for wage variations by location, as such data is broken down
by occupational classification in an area of employment. DHS agrees
that some wage levels are below market rate, which is part of the
reason DHS sees the need for this rulemaking. One of the goals of this
rule is to 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. While DHS did not conduct an in-depth analysis to measure
regional impacts across metropolitan and nonmetropolitan areas, DHS
notes that the rule neutralizes geographic differences in salary
amounts by taking into account the area of intended employment when
weighting registrations.
c. Other Comments Related to Required Information
Comment: Some commenters discussed how certain staffing or
contracting companies are deliberately altering or misrepresenting a
beneficiary's passport number so as to enter an individual multiple
times in the registration. To avoid this problem, a commenter said that
DHS must ensure that each registration must be accompanied by a scanned
copy of the beneficiary's passport with clearly identifiable
information.
Response: DHS does not believe requiring a scanned copy of the
beneficiary's passport with the registration is necessary, as the
current regulations already require the petitioner to provide the
beneficiary's passport or travel document information at the time of
registration. See 8 CFR 214.2(h)(8)(iii)(A)(4)(i). Further, on the
registration form the registrant must certify under penalty of perjury
that the registration represents a bona fide job offer and that the
organization(s) on whose behalf this registration is being submitted
intends to file an H-1B petition on behalf of the beneficiary named in
each registration if the beneficiary is selected.
Petitioners are also required to submit evidence of the passport or
travel document used at the time of registration to identify the
beneficiary at the time of filing. See 8 CFR 214.2(h)(8)(iii)(D)(1).
The H-1B petition filed on behalf of a beneficiary must contain and be
supported by the same identifying information, and if the passport
numbers do not match, USCIS may deny or revoke the petition. USCIS may
also deny or revoke a petition if the statement of facts contained on
the registration or petition submission was inaccurate, fraudulent,
materially misrepresents any fact, or was not true and correct.
Additionally, USCIS may refer an individual or entity to appropriate
Federal law enforcement agencies for investigation and further action,
as appropriate.
E. Process Integrity
1. Certifying the Contents of the Registration and Consequences
Comment: A commenter asked what documents must be provided at
registration to demonstrate that the registration represents a bona
fide job offer.
Response: On the registration form, the registrant must certify
under penalty of perjury, among other things, that the registration
represents a bona fide job offer and that the organization(s) on whose
behalf this registration is being submitted intends to file an H-1B
petition on behalf of the beneficiary named in each registration, if
the beneficiary is selected. Aside from the requisite certification,
documentation is not required to be provided at the time of
registration because USCIS does not adjudicate the registration.
Registration is merely an antecedent procedural step to efficiently
administer the H-1B cap selection process and determine eligibility to
file an H-1B cap petition in years of excess demand.
If USCIS has reason to believe that the certifications made during
registration are not true and correct, it will investigate the parties
in question, including examining evidence of collusion and patterns of
non-filing of petitions. If USCIS finds that a certification was not
true and correct, USCIS will find the registration to not be properly
submitted. The prospective petitioner would not be eligible to file a
petition based on that registration, and USCIS may deny a petition, or
revoke a petition approval, based on an invalid registration that
contained a false certification. New 8 CFR 214.2(h)(10)(ii). USCIS may
make findings of fraud or willful material misrepresentation against
petitioners, if
[[Page 60907]]
the facts of the case support such findings. USCIS may also refer the
individual or entity who submitted a false certification to appropriate
Federal law enforcement agencies for investigation and further action,
as appropriate.
2. Potential Employer Wage Manipulation
Comment: Numerous commenters said the proposed rule would
incentivize employer wage manipulation at the registration stage.
Multiple commenters reasoned that employers might inflate wages to
increase their chances in the lottery without actually paying the
stated wages. Many commenters also remarked that job titles or
descriptions for a beneficiary could be inflated to increase the salary
level and chance of selection.
Some commenters discussed how companies could engage in fraudulent
payroll practices by inflating paychecks to increase chances in the
lottery. Commenters stated that companies may issue inflated paychecks
to meet wage requirements on paper, but in reality pay employees much
less. A commenter characterized the rule as a ``half-measure,'' writing
that employers will inflate proffered wages on paper, then bench
workers or dodge pay via loopholes like phantom bonuses--fueling abuse
by outsourcers who undercut U.S. wage rates. One commenter discussed
that small companies could inflate paychecks to meet wage requirements,
sometimes reclaiming the excess amount from employees through
unofficial means, even when there is no actual job. Another commenter
suggested that companies could collude in determining which level of
wage to offer to increase the chance of selection.
A commenter said the rule may inadvertently encourage wage
manipulation, such as by employers: artificially increasing wages to
reach higher tiers without genuine job changes; cutting benefits or
other compensation to offset inflated base pay; clustering wages just
above OEWS thresholds (``bunching''); or narrowing job roles to
maintain appearance of high pay. Other commenters suggested that a
self-sponsored H-1B could claim they make a salary that would allow
them to gain an advantage in the lottery.
A commenter also raised concerns about employers manipulating
salary timing to meet H-1B requirements, such as paying low wages for
most of the year and increasing pay shortly before submitting a
petition, thereby USCIS only seeing the higher recent pay on submitted
paystubs. The commenter recommended requiring all paystubs or income
tax records to verify consistent compensation. The commenter further
cautioned that advances in AI could make it easier to falsify
documents, urging USCIS to take greater care in validating submitted
materials.
Some commenters also expressed doubts about USCIS' ability to
enforce the proposed wage-based selection process and verify that
employers pay the wages promised. A commenter said that the proposed
rule does not address how companies will be prevented from inflating
wages for the lottery and reducing them later. Another commenter
recommended that employers report any changes to wage or position in
real-time to USCIS, and that penalties for violations be significant
enough to deter gaming the system, including fines and potential
disqualification from future H-1B filings. Some commenters provided
suggestions to detect and deter employer wage manipulation, including
ensuring:
Employers provide supporting documentation that
demonstrates the offered wage is appropriate for the position and
location, such as internal compensation policies or comparable industry
data.
Companies demonstrate real ability to pay the stated wage;
The occupational classification aligns with actual job
duties;
The selected wage be paid for a minimum of 12 months after
the H-1B start date;
Payroll records verify consistent compensation;
The employer provides a signed attestation confirming the
wage commitment;
Penalties for violations or misclassification, including
repayment of the difference and potential bans on future H-1B filings;
Tie the wage level used for weighting to the certified LCA
at filing;
Require attestations under penalty of perjury;
Run post-selection audits against DOL OEWS and LCA data;
and
Set meaningful penalties for misclassification.
Response: DHS is also concerned about wage manipulation and program
integrity, but this rule and existing regulations contain provisions to
sufficiently address these concerns. This rule will require an H-1B
petition filed after registration selection 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. See new 8 CFR 214.2(h)(8)(iii)(D)(1).
The 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 new 8 CFR
214.2(h)(8)(iii)(D)(1). In addition, USCIS may deny a subsequent
petition by the employer if USCIS determines that the filing of the new
or amended petition is part of the petitioner's attempt to unfairly
increase the chance of selection during the registration or petition
selection process, as applicable, such as by changing the proffered
wage in a subsequent new or amended petition to an amount that would be
equivalent to a lower wage level than that indicated on the
registration. See new 8 CFR 214.2(h)(10)(iii).
These new requirements will work in conjunction with existing H-1B
regulations 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. Both the submitted registrations and filed petitions are
signed under penalty of perjury that the information on the
registration or petition is true and correct and that both the
registration and petition represent the offer of a legitimate or bona
fide job. USCIS may deny a petition or, if approved, revoke the
approval of a petition, if the statement of facts contained on the
registration form is inaccurate, fraudulent, misrepresents any material
fact, or is not true and correct. See 8 CFR 214.2(h)(10)(ii) and
(11)(iii)(A)(2). Employers must also attest on the registration
submission, under penalty of perjury, that they have not colluded to
increase their chances of selection.
DHS likewise agrees that petitioners misrepresenting the salary
(including salary timing) in order to inflate the odds of selection,
while not actually paying the beneficiary that salary, is an important
integrity concern. DHS acknowledges these concerns but does not agree
that the weighted selection framework will produce the harm described.
Existing DHS and DOL regulations clearly require the petitioner to meet
the obligations of the LCA and the petition, including the proffered
wage requirements. See 8 CFR 214.2(h)(4)(iii)(B), 20 CFR 655.705(c)(1),
and 655.731. This rule does not address or change DOL regulations
regarding the petitioner's wage obligations. Employers cannot inflate
wages on paper to obtain higher wage levels because prevailing
[[Page 60908]]
wage classifications are based on job requirements and location, and
employers are legally required to pay the actual or prevailing wage,
whichever is higher. See INA sec. 212(n)(1), 8 U.S.C. 1182(n)(1).
Failure to pay at least the required wage is illegal and the rule does
not change these obligations or create incentives for wage
misclassification. Similarly, existing H-1B rules already prohibit
unpaid benching and require employers to pay the required wage during
nonproductive time. These protections remain fully in place under the
weighted-selection process.
Additionally, DHS \85\ and DOL \86\ have mechanisms in place to
report concerns of fraud or misrepresentation in the H-1B process. If
DOL finds that an employer has violated the LCA attestations and wage
obligations, DOL may impose administrative sanctions and notify USCIS
that the employer shall be disqualified from approval of petitions
filed by the employer for a designated period of time, depending on the
nature of the violations. See 20 CFR 655.800. Moreover, as noted
previously, if USCIS discovers that a petitioner is violating the terms
and conditions of the petition, including not paying the beneficiary
the required wage, USCIS may revoke the petition approval on notice.
See 8 CFR 214.2(h)(11)(iii). During the adjudication of any petition
based on a selected registration, USCIS will confirm that the OEWS wage
level and LCA information support the submitted registration and
petition.
---------------------------------------------------------------------------
\85\ See the ICE Tip Form for reporting suspected immigration
benefit fraud and abuse, https://www.ice.gov/webform/ice-tip-form.
\86\ See 20 CFR 655.710(a) for procedures for filing a complaint
concerning misrepresentation in the labor condition application or
failure of the employer to meet a condition specified in the
application.
---------------------------------------------------------------------------
DHS notes that these regulations apply to all registrations,
including those submitted by beneficiary owners. If a beneficiary owner
submits a registration with a wage level that is higher than that which
corresponds to what the offered position actually pays, the petition
would be denied. If the beneficiary owner instead misrepresents the
salary on the LCA or petition, the petition will be denied or the
approval revoked because the information contained in the LCA or
petition was not true and correct. See 8 CFR 214.2(h)(10)(ii) and
(11)(iii)(A)(2).
DHS declines to add additional evidentiary requirements to verify
salary at the registration stage through this rulemaking, such as
requiring all paystubs or income tax records, as USCIS does not
adjudicate registrations. Further, requiring such documents as initial
evidence during the petition stage may not be feasible, as many
registrations are for prospective jobs such that this evidence would
not be available at the time of filing. Moreover, USCIS already
requires such evidence to determine whether the beneficiary maintained
status when adjudicating an extension petition. USCIS also uses a
compliance review program as an additional way to verify information in
certain visa petitions.\87\ Under this program, USCIS Fraud Detection
and National Security (FDNS) officers make unannounced site visits to
collect information as part of a compliance review. A compliance review
verifies whether petitioners and beneficiaries are following the
immigration laws and regulations that are applicable in a particular
case. During a compliance review, FDNS officers may assess whether the
beneficiary is being paid the wage as stated on the petition and
consistent with the wage level marked on the registration. Therefore,
DHS believes this rule and existing regulations are sufficient to
address these issues.
---------------------------------------------------------------------------
\87\ See USCIS, Administrative Site Visit and Verification
Program, https://www.uscis.gov/about-us/organization/directorates-and-program-offices/fraud-detection-and-national-security-directorate/administrative-site-visit-and-verification-program (last
modified May 13, 2025).
---------------------------------------------------------------------------
Concerning the comments on existing integrity issues, such as bad
actors claiming to employ or pay beneficiaries when in reality the job
does not actually exist and the beneficiary is then paying their
``wage'' back to the company, DHS continues to explore ways to improve
the integrity of the H-1B petition process. However, as this concern is
not a result of the proposed weighted selection process, it is beyond
the scope of this narrowly tailored rule. Similarly, the suggestions
that DHS pursue additional enforcement mechanisms, such as
``penalties'' for violations or misclassification, or potential bans
from the registration, are also out of scope of this rulemaking. USCIS
may, however, refer an individual or entity who submitted a false
certification to appropriate Federal law enforcement agencies for
investigation and further action, as appropriate.
a. Part-Time Employment Concerns
Comment: Several commenters expressed concerns about the
possibility of abuse by companies that would offer part-time positions
at greater hourly wages, but would reduce overall working hours, to
increase their chance of selection. Other commenters expressed similar
concerns about potential abuse of part-time positions or ways to
manipulate work hours to artificially inflate the salary used as the
basis for the registration. Commenters proposed that USCIS should only
count the annual salary for lottery purposes, or require full-time
employment.
Response: DHS appreciates these concerns but believes they are
adequately addressed by existing regulations and the provisions
finalized by this rule. USCIS may already deny a petition or, if
approved, revoke the approval of a petition, if the statement of facts
contained on the registration form is inaccurate, fraudulent,
misrepresents any material fact, or is not true and correct. See 8 CFR
214.2(h)(10)(ii) and (11)(iii)(A)(2). This final rule authorizes USCIS
to deny or revoke approval of a subsequent new or amended petition
filed by the petitioner, or a related entity, on behalf of the same
beneficiary, if USCIS determines that the filing of the new or amended
petition is part of the petitioner's attempt to unfairly decrease the
proffered wage to an amount that would be equivalent to a lower wage
level, after listing a higher wage level on the registration to
increase the odds of selection. See new CFR 214.2(h)(10)(iii) and
(11)(iii)(A)(8). Thus, if USCIS finds that an employer misrepresented
the part-time or full-time nature of a position, the number of hours
the beneficiary would work, or the proffered salary, then USCIS could
deny the petition or revoke the petition approval. See 8 CFR
214.2(h)(10)(ii) and (11)(iii)(A)(2). The ability to deny or revoke
approval of an H-1B petition in this context will militate against
registrants and petitioners attempting to abuse the H-1B cap selection
process through misrepresentation.
b. Domestic vs. Consular Petitions
Comment: Some commenters mentioned that employers who file
petitions for consular processing can offer higher wages yet avoid
paying those wages until the worker enters the United States, allowing
them to gain selection process advantages without financial commitment.
The commenters noted that this creates asymmetry between petitioners
who must pay wages immediately for workers inside of the United States
and those who delay activating their workers located abroad.
Response: DHS declines to make any changes to address this
perceived advantage or asymmetry. By the commenters' logic, a
petitioner requesting a one-year validity period would have an unfair
advantage over a petitioner requesting a three-year validity period
because they would not
[[Page 60909]]
have to pay the employee the stated wage for as long. However, the
timing of wage obligations is governed by DOL regulations and is not
being addressed or changed with this rule. DHS further notes that the
petitioner must still be offering a bona fide job to the alien with the
intent that the alien will enter the United States to perform the
offered work. Employers are obligated to pay aliens in H-1B status in
compliance with DOL regulations. Additionally, as noted previously, if
the company or related entity were to file an amended petition in an
attempt to later lower the proffered wage after using a higher wage
level to gain an unfair advantage in registration, USCIS could deny
that petition. See new CFR 214.2(h)(10)(iii).
3. Consistency Between the Registration and the Petition
Comment: A commenter discussed the need for consistency of
requirements between the registration and the petition stating that (1)
a ``zero-tolerance policy for bait-and-switch tactics'' should be
adopted and any discrepancy between a petition and registration result
in an automatic denial; and (2) a cross-agency data verification (e.g.,
H-1B registration, DOL LCA filing, and Form I-129 petition) should be
used to flag inconsistencies in wage and position data for immediate
manual review.
Response: As noted in the NPRM, this rule will require an H-1B
petition filed after registration selection 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. See new 8 CFR 214.2(h)(8)(iii)(D)(1).
90 FR 45986, 45995 (Sept. 24, 2025). This is 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. USCIS will
utilize available USCIS and DOL systems to ensure that the information
on the LCA supports, and is consistent with, the registration and
petition.
4. Potential SOC Code Manipulation
Comment: Some commenters reasoned the proposed rule would create
opportunities for the SOC codes to be exploited to boost selection odds
and manipulated to exaggerate job complexity. Another commenter said
that the standards for assigning wage levels are not strict enough.
Expanding on this same point, another commenter said that explicitly
prioritizing wage levels will encourage employers to manipulate them,
which they can achieve without actually raising salaries. The commenter
explained that the largest new incentive will be to reclassify a job
into an occupational category with a lower prevailing wage so that they
will get more lottery entries for the same salary.
One commenter provided an example of how two managerial roles could
be classified under the Industrial Engineer SOC code (primary duties
include technical process improvement, metrics analysis, and workflow
optimization) to achieve a higher wage level, even though the position
is effectively a managerial role. Some commenters also remarked that
job titles or descriptions for a beneficiary could be manipulated to
support selection of an SOC code where the proffered wage would place
the beneficiary into a higher wage level rather than the true SOC code,
which would put the beneficiary in a lower wage level, thereby
inflating the beneficiary's selection chances.
Commenters also stated that lower-skilled job codes could be
selected that have higher prevailing wages because the SOC framework
permits multiple plausible classifications for a given role and not all
specialized occupations have a perfectly matching SOC code.
Response: All petitioners are required to identify the appropriate
SOC code for the proffered position on the LCA. During the adjudication
process, USCIS ``will determine whether the labor condition application
involves a specialty occupation as defined in section 214(i)(1) of the
Act and properly corresponds with the petition.'' See 8 CFR
214.2(h)(4)(i)(B). If USCIS has reason to question whether the SOC code
selected by the petitioner properly corresponds with the petition,
USCIS will comply with 8 CFR 103.2(b)(8) and may provide the petitioner
an opportunity to explain the selected SOC code, as applicable. If
USCIS determines that the petitioner failed to meet its burden of proof
in establishing that it selected the appropriate SOC code for the
position, USCIS may deny the petition. See new 8 CFR 214.2(h)(10)(ii).
Further, a petition will be denied if USCIS determines ``that the
statements on the petition, H-1B registration (if applicable), the
application for a temporary labor certification, or the labor condition
application, were inaccurate, fraudulent, or misrepresented a material
fact, including if the attestations on the registration are determined
to be false.'' See 8 CFR 214.2(h)(10)(ii). As such, a petitioner's
misrepresentation of the offered position on the LCA, registration, or
petition is already grounds for denial of the petition. Additionally,
if USCIS discovers that the petitioner is violating the terms and
conditions of the petition (for example, employing the beneficiary in a
position that does not align with the SOC code and position described
in the petition, registration, or on the LCA), USCIS may revoke the
petition approval on notice. See 8 CFR 214.2(h)(11)(iii). DHS believes
that USCIS' ability to verify that the LCA, including the SOC code on
the LCA, properly corresponds with the petition will help to prevent
possible abuse, such as choosing an inaccurate SOC code to increase the
chance of selection.
5. Potential Job Location Manipulation
Comment: Several commenters expressed concerns that employers could
manipulate job locations to meet specific salary thresholds, thereby
improving an applicant's chances of selection. Some commenters
discussed how companies could choose a low-cost location with a level
IV wage as the work location when entering the location, but after a
brief period of stay, move the individual to the actual work location.
Conversely, multiple commenters said employers could also promise a
high-cost city wage level far above what they intend to pay and shift
workers to lower-cost regions after activation where pay is
significantly lower. A commenter noted that the proposed rule would
effectively encourage companies to reposition jobs toward cheaper
regions to gain lottery advantage, because the same job may be treated
as ``high level'' in a smaller city and ``low level'' in a metropolitan
hub. Commenters expressed concern that outsourcing firms could exploit
the rule by relocating operations to smaller cities with lower wages.
Citing examples of multiple office locations with the same wage package
in different regions, a commenter asked how employee-preferred
relocation to a position in a low-cost area (where the position would
have a higher wage level) for a better chance in the lottery would be
treated in terms of compliance. Some commenters questioned how USCIS
will distinguish between permissible disclosure of multiple locations
versus impermissible gaming of the wage level selection.
Response: As noted in the NPRM, this rule will require an H-1B cap-
subject petition filed after registration selection 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. See new 8 CFR
[[Page 60910]]
214.2(h)(8)(iii)(D)(1). 90 FR 45986, 45995 (Sept. 24, 2025). 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 new 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
will be reflected as a worksite in the subsequently filed petition,
such that the petition continues to support the requirement that the
registration was based on a bona fide job offer. See new CFR
214.2(h)(8)(iii)(D)(1). While the registration will 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 if the beneficiary will work in multiple
locations--the petition will have to list all addresses where the
beneficiary is expected to work.
The final rule will 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 new 8 CFR 214.2(h)(10)(iii). 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 will 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. These regulations will apply
regardless of the reason for relocation and whether it was employer or
employee driven.
This rule does not prevent employers from making business decisions
about the location or relocation of their operations and the terms of
employment for their employees. If an employer chooses to move a
position to a low-cost area while retaining a salary commensurate with
a high-cost location, such that the salary would result in a higher
wage level designation in the low-cost area, that is in the purview of
the business. This would be permissible under this rule as long as the
employer is offering a bona fide position at that location and the
beneficiary will in fact work in that location. However, attempts to
then move the beneficiary back to a high-cost location would be heavily
scrutinized and the petition could be denied if USCIS finds that the
employer did not meet its burden of proof to show that the move was not
made to unfairly increase the chances of selection. See new 8 CFR
214.2(h)(10)(iii).
In regard to questions about how USCIS will distinguish between
legitimate multiple locations and impermissible gaming, the proposed
rule makes clear that the position, as described on the LCA and
registration, must be bona fide and if the offered position involved
work in multiple locations, the employer must submit a registration
corresponding to the lowest wage level associated with the locations.
See new 8 CFR 214.1(h)(8)(iii)(A)(5)(i). For example, if a job involves
work in two different MSAs, one where the proffered salary equals a
level I wage and one where the proffered salary equals a level II wage,
the employer must submit a registration at level I. Failure to do so
will result in denial of the petition. Whether a change represents
``impermissible gaming'' is case specific based on the facts presented.
USCIS will examine the registration and the petition, which includes
the LCA, to compare the offered positions, SOC codes, locations, and
wage levels, along with the totality of the circumstances to determine
whether the petitioner has established that the change in employment is
not part of an attempt to game the selection process and increase the
chance of selection.
a. Remote Work Considerations
Comment: Many commenters specifically addressed remote work
considerations in the context of gaining an unfair advantage in the
weighted selection process. A commenter said that the proposed rule
contemplates the possibility of someone working at two different
locations (onsite work plus remote work, the hybrid model) but does not
address the possibility of someone working entirely remotely. A
commenter discussed how an employer could apply for a low-cost-of-
living location and an occupational category having a lower wage level
to increase chances in the lottery, but have the beneficiary work
remotely in a high-cost-of-living location. Similarly, another
commenter reasoned that an employer could list fully remote positions
in low-wage areas in order to claim a level IV wage in a rural
nonmetropolitan area, thereby offering a lower wage but higher chance
for the beneficiary to be selected. The commenter added they could
foresee a ``wave'' of H-1B registrations claiming level IV wages, not
because a job requires high-level skills or offers truly high
compensation, but because artificial work locations give a statistical
edge. A commenter said USCIS should clarify how remote workers are to
be treated under the weighted selection process, including guidance on
relocations, wage determination, and weight eligibility. Another
commenter suggested that to prevent gaming of the system, wage levels
must be binding once selected, and remote work should default to the
primary worksite for prevailing wage purposes, and misrepresentation
should incur strict penalties.
Response: Regardless of whether the work will be performed at an
office or remotely, the registrant must 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. See new 8 CFR 214.2(h)(8)(iii)(A)(4)(i). The
registrant must also certify, under penalty of perjury, that all of the
information contained in the registration is true and correct.
Importantly, if the beneficiary will work in multiple locations, the
registrant must select the lowest corresponding OEWS wage level that
the beneficiary's proffered wage will equal or exceed. Id. This
provision removes a potential incentive to inflate wage levels through
strategic location choices, including through remote work, to help
ensure integrity of the selection process.
The rule also allows 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 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.
[[Page 60911]]
See new 8 CFR 214.2(h)(10)(iii). Further, USCIS will deny a petition if
it determines ``that the statements on the petition, H-1B registration
(if applicable), the application for a temporary labor certification,
or the labor condition application, were inaccurate, fraudulent, or
misrepresented a material fact, including if the attestations on the
registration are determined to be false.'' See 8 CFR 214.2(h)(10)(ii).
As such, a petitioner's misrepresentation of the offered position's
location on the LCA, registration, or petition is already grounds for
denial of the petition.\88\ Additionally, if USCIS discovers that a
petitioner is violating the terms and conditions of the petition (for
example, employing the beneficiary in a location that does not align
with the location described in the petition, registration, or on the
LCA), USCIS may revoke the petition approval on notice. See 8 CFR
214.2(h)(11)(iii).
---------------------------------------------------------------------------
\88\ Nothing in this rule changes the Department of Labor's
administration and enforcement of statutory and regulatory
requirements related to labor condition applications.
---------------------------------------------------------------------------
6. Multiple Registrations
Comment: Some commenters stated that companies could submit
multiple registrations using shell companies or subsidiaries to game
the weighted selection process. Another commenter reasoned that
employers could ``manufacture'' job positions to game the system by
submitting for multiple job applicants, even though there is only one
position available.
Response: DHS disagrees that the weighted selection process will
allow companies to submit multiple registrations on behalf of an
individual alien through subsidiaries or shell companies to increase
their chance of selection. Importantly, the weighted selection process
is built on the beneficiary centric registration selection process. All
registrations submitted on behalf of each unique individual will be
identified and grouped together. If more than one registration is
submitted for a beneficiary, USCIS will use the lowest equivalent wage
level provided in any of the registrations submitted on that
individual's behalf when determining the weight to be accorded to that
beneficiary in the weighted selection process. The number of
registrations submitted on an alien's behalf does not impact the chance
of selection. Further, the existing registration attestation requires
an employer to certify that that the registration reflects a legitimate
job offer. Through this rule making, DHS is also adding that ``a valid
registration must represent a bona fide job offer'' to the regulatory
language. See new 8 CFR 214.2(h)(10)(ii). A bona fide job offer is one
that exists as described on the registration and petition and in which
the employer intends to employ the beneficiary. If the employer is
submitting registrations for different individuals for the same job
opportunity, those registrations do not represent a bona fide job
offer. As such, petitions filed based on these registrations would be
subject to denial or revocation of the petition's approval. See 8 CFR
214.2(h)(10)(ii) and (11)(iii).
7. Related Entities
Comment: A commenter remarked that the proposed rule references
``related entity'' at proposed 8 CFR 214.2(h)(10)(iii) and
(11)(iii)(A)(8) but provides only general factors (familial ties,
proximity, leadership structure), and questioned how USCIS would make
these determinations and if there would be guidance or precedent
decisions published to provide predictability. Another commenter
expressed similar concern, adding that USCIS should revise 8 CFR
214.2(h)(2)(i)(G) to codify a clear, enforceable definition for the
term ``legitimate business need'' and that it should explicitly operate
pursuant to the objectives of the INA.
Response: The proposed regulations at 8 CFR 214.2(h)(10)(iii) and
(11)(iii)(A)(8) use the term ``related entity'' as it has been
understood and applied in the H-1B program for many years. The term is
not new and USCIS issued policy guidance on this term in Matter of S-
Inc., Adopted Decision 2018-02 (AAO Mar. 23, 2018). Therefore, proposed
8 CFR 214.2(h)(10)(iii) and (11)(iii)(A)(8) will be finalized without
change. DHS did not propose to amend the regulation at 8 CFR
214.2(h)(2)(i)(G) and DHS will not modify that provision in the final
rule. Like the term ``related entity,'' the term ``legitimate business
need'' is not new and was likewise explained in USCIS-issued policy
guidance Matter of S- Inc., Adopted Decision 2018-02 (AAO Mar. 23,
2018).
8. Other Comments Related to Process Integrity
Comment: A commenter referenced proposed 8 CFR 214.2(h)(10)(iii),
stating the proposed rule only provides one example of attempting to
``unfairly increase the odds of selection'' (reducing the proffered
wage to a lower wage level). The commenter questioned what other
scenarios would trigger this provision, and how USCIS would provide
notice and opportunity to respond before making such determinations. A
commenter expressed that the proposed rule's integrity provisions would
create particularly severe problems by allowing USCIS to deny or revoke
petitions based on subjective determinations about whether changes
between registration and petition represent attempts to ``unfairly
increase the odds of selection.'' The commenter added that the proposed
rule provides limited guidance about what types of changes would be
permissible versus impermissible. A different commenter suggested that
the proposed rule would allow USCIS to deny a petition or revoke a
petition approval if it appears the petitioner made a subsequent change
to wage level after selection as evidence of inconsistency, even when
ordinary business conditions may explain the adjustment.
Response: Whether an employer has attempted to unfairly increase
the odds of selection is a case specific determination based on the
facts in the record. USCIS will examine the registration, the original
petition, and any subsequent petition to compare the offered positions,
SOC codes, locations, and wage levels, along with the totality of the
circumstances to determine whether the petitioner has established that
the change in employment is not part of an attempt to game the
selection process and increase the chance of selection.
As explained in the proposed rule, the petition must 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. See new 8 CFR
214.2(h)(8)(iii)(D)(1). The 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. See new 8 CFR 214.2(h)(8)(iii)(D)(1). USCIS may
deny or revoke the approval of an H-1B petition that does not meet
these requirements. However, in its discretion, USCIS may find that a
change in the area(s) of intended employment between registration
submission and petition filing is permissible, provided such change is
consistent with the requirement of a bona fide job offer at the time of
registration.
For changes between an initial petition and subsequent new or
amended petitions filed by the petitioner or a related entity, if the
petition would lower the wage level that would have been selected in
registration, USCIS would scrutinize
[[Page 60912]]
whether the original offered position that was the basis of the
registration and original petition was in fact bona fide or the
employer was attempting to unfairly increase the odds of selection. In
accordance with existing regulations, before denying a petition under 8
CFR 214.2(h)(10)(iii), the petitioner would be given notice of the
issue(s) through a notice of intent to deny.
Comment: Numerous commenters expressed concerns regarding fraud and
system abuse in the H-1B program as it relates to this rule. A few
commenters remarked that the existing random, beneficiary-centric
lottery, while imperfect, treats all registrants equally and avoids
inequities and potential loopholes. Many commenters expressed concern
that the proposed weighted selection process would do nothing to fix
the systemic fraud and abuse issues in the H-1B program.
A commenter stated that USCIS has already established mechanisms
for guarding against fraud and misrepresentation, and that the proposed
rule would provide minimal benefit regarding program integrity, while
disproportionately increasing the risk of penalizing employers for
unavoidable discrepancies. Another commenter voiced opposition to the
proposed rule and expressed that the proposed rule is a ``half
measure'' to fix a system that harms U.S workers' careers by
prioritizing foreign labor. Another commenter suggested that without
modernizing the visa cap and improving administrative efficiency, a
wage-based selection process will only deepen existing challenges.
A commenter voiced concern about whether the proposed rule would
adequately address fraud and enforcement, stating that vague provisions
around wage calculation and job tracking could enable manipulation.
Another commenter questioned whether the rule provides sufficient
procedural clarity, remarking on the lack of detail on wage
enforcement, worksite transfers, and post-approval wage amendments. A
commenter expressed general concern about fraud in the H-1B program and
questioned whether USCIS could effectively manage this issue.
Similarly, another commenter said that USCIS and DOL lack the capacity
to verify beneficiary qualifications and that the proposed rule could
increase financial incentives to exploit the program through falsified
credentials and kickback schemes.
Response: DHS agrees that enhancing the integrity of the H-1B
program is important. This narrowly scoped rule seeks to build on the
success of the beneficiary-centric registration selection process to
reduce registration fraud while at the same time achieving the policy
goal of incentivizing employers to use the H-1B program to employ
highly paid, highly skilled workers. The rule includes provisions to
prevent gaming of the weighted selection process as detailed
previously, including provisions governing changes in wage, location,
and position, as well as provisions addressing changes in amended
petitions. Additionally, existing regulations also allow USCIS to
address fraud or misrepresentation in the registration, LCA, or
petition process through denial or approval revocation. Further, where
USCIS determines that an employer is attempting to subvert the weighted
selection process and has submitted false attestations, USCIS may refer
the individual or entity who submitted a false attestation to
appropriate Federal law enforcement agencies for investigation and
further action, as appropriate. Although DHS declines to add additional
anti-fraud provisions to this narrowly scoped rule, DHS will continue
to look for ways to improve the H-1B program and to protect the
interests of U.S. workers.
Comment: A commenter remarked that a result of the proposed rule
could be the increased use of alternative visa categories and
employment structures to avoid H-1B restrictions. The commenter
suggested, for example, that employers unable to secure H-1B workers at
desired wage levels might increase use of L-1 intracompany transferee
visas, O-1 extraordinary ability visas, or other categories not subject
to the numerical cap or wage-based selection.
Response: DHS is focused on ensuring the integrity of all the
employment-based classifications and will continue to carefully
adjudicate all benefit requests. Although DHS is aware of employers and
individuals filing frivolous petitions for which they are not
qualified, it is possible that an alien and his or her employer would
qualify under more than one nonimmigrant classification. Moreover, the
goal of this rule is to enhance the H-1B cap selection process, not to
prevent aliens from seeking other classifications for which they may be
eligible.
F. Other Issues Relating to the Rule
1. Alternatives to the Proposed Weighted Selection Process
a. Recommendations To Weight Wage Levels More Heavily
Comment: Some commenters expressed a preference for the wage-based
approach that DHS finalized in 2021. Under that approach, DHS would
adopt a selection process that would be fully determined by wage level,
starting with selecting all level IV registrations and proceeding
sequentially to levels III, II, and I only if the cap were not met. If,
at any wage level, the number of applicants exceeds the remaining cap,
then a random lottery should be conducted only among that wage level.
Some commenters asserted that, while the proposed weighted approach
would still be a notable improvement from the status quo, it would be
less effective at protecting the interests of U.S. and foreign workers
than the approach described in the 2021 final rule. Another commenter
advocated for a ``wage-based allocation system'' modelled on the 2021
rule stating that that system would advantage direct-hire employers,
including start-ups and small businesses, and more effectively improve
the H-1B visa allocation process in comparison to the proposed weighted
selection. A different commenter stated that the proposed rule is
insufficient to address the issues caused by the random lottery and
provided several reasons why it preferred the 2021 rule, including:
this rule still retains the element of randomness while the 2021 rule
created more certainty; this rule will only minimally raise the median
salary of H-1B workers compared to the 2021 rule; this rule still
allows outsourcing firms to benefit; and the 2021 rule provided more
benefits to U.S. early-career workers who would face reduced
competition from H-1B workers.
Response: While the approach in the 2021 final rule was reasonable
to facilitate the admission of higher-skilled or higher-paid workers,
that rule did not capture the optimal approach. DHS believes that the
weighted selection process as proposed in the NPRM and being finalized
in this rule is the optimal approach because it increases the chance of
selection for beneficiaries who will be paid a wage that corresponds to
a higher wage level while not excluding those at lower wage levels,
unlike the 2021 final rule. While DHS prefers that cap-subject H-1B
visas be allocated in a manner that favors higher-paid, higher-skilled
beneficiaries, DHS also recognizes the value in maintaining the
opportunity for employers to secure H-1B workers at all wage levels.
DHS believes that this rule appropriately balances the interests of
U.S. workers with the interests of petitioning employers and the alien
workers they seek to employ as H-1B nonimmigrants.
Comment: Commenters provided various alternatives that would
prioritize registrations for higher level wages while giving less
weight to
[[Page 60913]]
registrations for lower wage levels than proposed. These commenters
generally reasoned that level I and II workers have fewer skills, are
more likely used by consulting companies to replace higher-paid U.S.
employees, and that prioritizing level IV registrations would be truer
to the original purpose of the H-1B program since workers at higher
wage levels better reflect Congress' intended recipients of H-1B visas
as high-skilled, high-wage workers, among other reasons. For example,
many commenters recommended that level IV registrations should have
much higher chances of selection than just four times, whereas level I
and II registrations should have much lower chances. Others recommended
an allocation framework involving ``pools'' or ``caps'' for each wage
level, wherein the allocation for level IV registrations would be the
highest and would decrease in order of the remaining wage levels.
Response: DHS appreciates these suggestions but believes that the
weighted selection process proposed in the NPRM and finalized in this
rule is a reasonable approach because it increases the chance of
selection for beneficiaries who will be paid a wage that corresponds to
a higher wage level while not entirely excluding those at lower wage
levels. With regard to the asserted benefits of the proposed
alternatives, DHS believes the approach in this final rule similarly
offers these benefits with respect to incentivizing higher wages,
mitigating unfair competition to U.S. workers, and providing greater
access to visas for higher-paid, higher-skilled beneficiaries.
Comment: A couple of commenters suggested that DHS should ensure
100% selection or guarantee ``approval'' of all level IV registrations.
Likewise, some commenters recommended guaranteeing selection for levels
III and IV, while excluding levels I and/or II entirely.
Response: It is unclear whether the commenters were suggesting
guaranteed petition approval or guaranteed selection in the
registration process for aliens at higher wage levels. In either case,
DHS declines to adopt this suggestion. USCIS does not adjudicate
registrations. Additionally, DHS declines to ensure 100% petition
approval or guaranteed work visas to all aliens at certain wage levels.
It is possible that the number of prospective alien H-1B beneficiaries
at levels III and IV could exceed congressionally established numerical
limitations. Additionally, USCIS adjudicates every petition to ensure
eligibility and does not offer blanket guaranteed approvals, regardless
of proffered wage or wage level. DHS believes the proposed approach of
weighting registrations (or petitions, as applicable) for selection
based on a beneficiary's equivalent wage levels meets the goal of
favoring higher-skilled and higher-paid aliens, while still ensuring
the integrity of the registration process (or petition filing process,
as applicable).
Regarding the commenters' suggestions to entirely exclude lower
wage levels from the selection process, DHS prefers a weighted
selection process that does not effectively eliminate the odds of
selection for wage levels I and II. DHS reiterates that this rule
strikes an appropriate balance between prioritizing high wage levels
while also recognizing the value in maintaining the opportunity for
employers to secure H-1B workers at all wage levels. This rule also
preserves the opportunity for employers utilizing non-OEWS wage sources
to be selected. DHS recognizes that there may be some occupations or
geographic areas for which OEWS wage data is not available, or
positions for which a private wage survey or CBA may be used to
determine the required wage. In these cases, the registration might be
assigned a level I wage and as such would be effectively precluded if
registrations at lower wage levels were excluded. DHS believes that the
weighted selection process finalized in this rule is optimal because it
increases the chance of selection for those with wages that correspond
to higher wage levels but does not effectively preclude beneficiaries
from being selected solely because of variables, including OEWS data
limitations. DHS believes that this rule appropriately balances the
interests of U.S. workers with the interests of petitioning employers
and the alien workers they seek to employ as H-1B nonimmigrants.
Comment: A commenter stated that DHS must cap the number of level I
registrations, or else the weighted registration system would continue
to have issues. The commenter reasoned that employers could still
``manufacture'' job positions to game the system by submitting for
multiple beneficiaries at low wage levels, therefore making it even
less likely that higher wage levels would be selected.
Response: DHS appreciates the commenter's concern for potential
gaming in the manner described. It is theoretically possible that all
registrants will collude with each other to submit only level I
registrations, such that this rule would not have the intended impact
of incentivizing employers to hire higher-skilled H-1B workers.
However, DHS does not believe this scenario to be likely. Further,
under the existing registration process, all registrants must certify
that: each registration represents a legitimate job offer; all of the
information contained in the submission is complete, true and correct;
and that they have not worked with or agreed to work with another
registrant, petitioner, agent, or other individual or entity to submit
a registration to unfairly increase a beneficiary's chances of
selection. If DHS discovers that any of these certifications are not
true, DHS may deny or revoke the petition based on the underlying
registration and potentially pursue other appropriate action. Through
this rulemaking, DHS is also adding that ``a valid registration must
represent a bona fide job offer'' to the regulatory language (see new 8
CFR 214.2(h)(10)(ii)) and updating the registration attestation
regarding a legitimate job offer to attest to a ``bona fide job
offer.'' These provisions should further deter any registrant from
colluding with other registrants to manipulate wage levels during the
registration stage, thus rendering a cap on the number of level I
registrations unnecessary.
b. Recommendations To Select or Weight by Highest Salary, Not Wage
Level
Comment: Many commenters recommended allocating all H-1B visas by
the highest offered salaries rather than wage levels. Allocating by
salary would guarantee that the highest offered salaries would be
selected, without any random lottery elements. The commenters generally
explained that this alternative would ensure that the rule better
advances the objectives DHS laid out in the NPRM of increasing the
share of H-1Bs going to high-skilled, high-paid workers, and better
aligns with the program's intent to fill specialized positions while
ensuring fair compensation that does not undercut domestic wages, among
other reasons. A commenter similarly wrote that a wage-based system
would provide greater employer certainty, incentivize competitive
wages, advantage direct-hire employers over outsourcing firms, and
increase opportunities for international graduates from U.S.
institutions. Another commenter explained that allocating visas
according to wage would yield a more precise reflection of current
market demand and better reward petitioners who pay compensation that
reflects market demand. Some commenters stated that actual salary is a
better measure of skill rather than wage level, and cited research
that, according to the
[[Page 60914]]
commenters, showed that the proposed rule would increase median H-1B
salary by 3 percent, while a compensation-based system could lead to a
52 percent increase. A commenter stated that ranking by salary would
alleviate uncertainty and decrease the likelihood of fraud by companies
miscoding or misclassifying their sponsored workers.
Conversely, another commenter expressed opposition to other
commenters' proposals for a selection method based solely on salary.
The commenter stated that under the pure salary-based allocation
system, they would expect a greater share of H-1B visas being allocated
to computer and engineering occupations in high cost-of-living urban
and coastal areas. The commenter reasoned that this would undermine the
H-1B program's goals, since such occupations are not experiencing labor
shortages. Furthermore, the commenter remarked that this kind of
salary-based allocation system would be clearly inconsistent with the
statute, and that since all occupations have value, the H-1B program
should not use an allocation system that would mostly award visas to
tech companies
Response: DHS declines the suggestions to select registrations
purely based on the highest salary. DHS believes that selecting
registrations or petitions, as applicable, solely based on the highest
salary would unfairly favor certain professions, industries, or
geographic locations, such as computer and engineering occupations in
high cost-of-living urban areas as mentioned by a commenter. DHS
believes that prioritizing generally based on the highest OEWS wage
level that the proffered wage equals or exceeds for the relevant SOC
code and in the area of intended employment is the better alternative.
While DHS appreciates the commenter's concerns about the need to
alleviate uncertainty for employers, DHS also needs to balance this
with the countervailing interest H-1B employers have in maintaining the
opportunity to secure workers at all wage levels in all eligible
occupations, and without introducing unintended preference for
geographical locations.
DHS is also concerned about miscoding or misclassifying through SOC
code manipulation but believes it has sufficient enforcement mechanisms
in place to deter and penalize such behavior. DHS must also balance the
concerns for SOC code manipulation with the concerns of potentially
shutting out entire professions, industries, or geographic locations
that happen to be lower paying.
Regarding the comments that this rule would not sufficiently
increase the median H-1B salary, DHS appreciates these concerns but
notes that the primary goal of this rule is to 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. Moving to a weighted selection process is expected to
increase the number and share of equivalent level IV wage selections,
resulting in higher average offered wages among selected H-1B cap-
subject workers. While the expected increase to average H-1B wages may
not be as much as the increase that might result from the compensation-
based selection system advocated by these commenters, DHS considered
the disadvantages of such an alternative, e.g., unfairly favoring
certain professions, industries, or geographic locations, to outweigh
the benefits.
c. Recommendations To Account for Geographic Differences
Comment: Commenters provided various recommendations to adjust
wages or wage levels to account for geographic differences. These
recommendations included: considering national benchmarks or adjusted
weighting to avoid disadvantaging beneficiaries in major metro areas;
apply a nationally uniform wage-level standard to better reflect the
value of high-skilled labor; set wage limits based on the highest wage
levels in the State where a business operates (with the example that
entry-level programmer salaries in states like California or Washington
are typically at least 30 percent higher than in Midwestern states,
such as Michigan); normalize wage levels across regions; adjust wage
levels based on local statistical areas; normalize wages for cost-of-
living or purchasing power parity; and incorporate cost-of-living or
regional adjustments into the weighting model so the rule is consistent
for high-skilled workers in all U.S. regions.
Response: DHS declines to adopt these alternatives. This final rule
neutralizes geographic differences in salary amounts by taking into
account the area of intended employment when weighting registrations.
DHS disagrees that additional adjustments for national benchmarks or a
nationwide wage-level standard would improve the proposed weighted
selection process, or that it is necessary to set wage limits based on
the State where the business operates. Similarly, DHS does not believe
that normalizing wages across regions, or adjusting wages based on
local statistical areas is necessary, and such recommendations related
to the prevailing wage system go beyond DHS's expertise. While DHS
appreciates the additional recommendations, DHS does not believe that
they are necessary or feasible to incorporate into a weighted selection
process that is efficient to administer in a fair and effective way.
d. Recommendations To Account for Multiple Factors
Comment: A few commenters suggested that DHS could make adjustments
to salary to account for various factors. A commenter said that if
directly weighting salaries, DHS could adjust for various factors,
including: age and experience to ensure that workers who are early in
their careers (who may earn less, but are likely to make larger
economic contributions over their careers), are still able to get H-1B
visas, or alternatively, to prioritize workers with higher skill levels
by assigning weights based on applicants' highest degree and major
field, with larger weights for advanced degree holders in science and
engineering majors. One commenter stated that a salary-based selection
could be adjusted to select high-earning, high-value workers by
projecting earnings over a lifetime, for example, through adjusting for
age by taking the net present value of the discounted future earnings
stream. A different commenter recommended using actual wages paid
rather than wage levels as the selection metric, potentially adjusted
for geography and age. The commenter provided analysis that they
characterized as showing that this approach would decrease H-1B
outsourcing while increasing the share going to F-1 students,
especially Ph.D.s. The commenter added that such a system would be
harder to game than wage levels and better achieve the agency's goals.
A commenter suggested normalizing wages nationally by adjusting for
cost of living and region, calculating an adjusted ``national
equivalent'' wage percentile to ensure fairness across geographic
regions. Another commenter similarly requested that DHS recognize
regional differences in wage structures so that businesses outside
major cities are not unfairly excluded. Some commenters recommended
tying H-1B pay scales to inflation. Another commenter suggested
prioritizing by wages while also implementing weighted adjustments for
designated critical shortage occupations--such as healthcare providers
in medically underserved
[[Page 60915]]
communities, teachers in low-income school districts, and national
security-relevant technical occupations in lower-cost regions--
determined in coordination with certain government agencies.
Response: DHS believes that selecting registrations (or petitions,
as applicable) based on the highest salary would unfairly favor certain
professions, industries, or geographic locations. DHS believes that
prioritizing generally based on the highest OEWS wage level that the
proffered wage equals or exceeds for the relevant SOC code and in the
area of intended employment is the better alternative.
DHS also believes that combining and weighing multiple factors is
not feasible, as such an approach could be overly complicated,
unpredictable, and subjective. DHS believes that incorporating
adjustments based on multiple factors, such as the geographic area,
cost of living, the beneficiary's age, projected earnings over a
lifetime, and inflation would add unnecessary complexity into the
process and frustrate the goal of administering the cap selection
process in an efficient and effective manner. Some of these factors
could change over time or may be subjective, which increases the chance
of unpredictability and undermines some of the commenters' concerns
about the need for predictability. Therefore, DHS prefers to use the
OEWS wage level system that is already used in the H-1B program,
publicly accessible, and updated annually by DOL. DHS further notes
that the OEWS prevailing wage already takes into consideration
variations in wages due to different occupations and geographic
locations.
Regarding the suggestion to reserve visas or otherwise adjust
weighting for critical shortage occupations in the healthcare industry,
DHS believes that employers should be able to utilize the H-1B program
within a broad range of occupations and industries. Further, DHS
reiterates that H-1B petitions for aliens who are employed by, or have
received offers of employment at, U.S institutions of higher education,
nonprofit entities related to or affiliated with U.S. institutions of
higher education, or nonprofit research organizations or governmental
research organizations are exempt from the H-1B cap. See INA sec.
214(g)(5), 8 U.S.C. 1184(g)(5). Many employers and aliens in the
healthcare industry described by this commenter would be cap-exempt and
therefore not impacted by this rule. In the scenarios where such aliens
are not cap-exempt, DHS believes this rule will have a positive impact
by increasing the chance of selection for higher-paid, higher-skilled
foreign workers for employers in all industries and encouraging
employers to hire U.S. workers.
Comment: A commenter suggested that DHS should weight by the OEWS
wage level that corresponds to the requirements of the position, rather
than focusing on the salary being paid. The commenter said that this
method would ensure that the most highly skilled and talented employees
have the highest odds of selection, rather than incentivizing employers
to artificially increase wages regardless of the skill requirements of
the position.
Response: DHS continues to believe that salary, as demonstrated by
the equivalent OEWS wage level, remains the better proxy for skill.
Relying only on the OEWS wage level for each petition, as determined by
the education, skill and responsibility required for each position,
would only reflect the requirements for a position and would not
necessarily benefit an employer seeking to hire the most talented
candidate for a position, which undermines the primary purpose of this
rule.
e. Recommendations To Preserve Opportunity for Lower Wage Levels
Comment: A few commenters expressed the need to preserve
opportunity for all wage levels to be selected, claiming that the rule
will disproportionately advantage level IV registrations. The
commenters provided various alternatives intended to mitigate the risk
of overconcentration and preserve fair competition across wage levels,
including: capping the number of weighted entries assigned to higher
wage positions; setting a maximum selection weight to avoid giving
higher wage levels an ``overwhelming'' advantage; setting a
proportional selection floor or tiered quota that would ensure
opportunity for all wage levels; reserving a proportion of H-1B visas
for recent graduates as level I and II applicants, or at each wage
level; and increasing the selection chances for level II applicants to
ensure equitable access for talented professionals across all wage
levels.
Response: DHS declines to adopt these suggestions, as the goal of
this rule is to implement a weighted selection process that would
generally favor the allocation of H-1B visas to higher-skilled and
higher-paid aliens. Further, this rule already preserves the chance
that registrations with wages corresponding to any one of the four wage
levels may be selected. As stated in Table 13 of the NPRM and the
analysis accompanying this final rule, this rule is expected to provide
an estimated 89,911 level I registrations a 15.29% chance of selection
and an estimated 177,216 level II registrations a 30.58% chance of
selection based on a simple weighted-probability calculation. While the
Monte Carlo simulation may be more difficult for some commenters to
interpret, the results presented in row F of Table 13 show an estimated
15,330 selected registrants out of 89,911 for level I, reflecting a
slightly higher probability than the calculated 15.29%. Because the
Monte Carlo simulation accounts for non-replacement in the selection
process, the probabilities will be closer to the simple weighted
probability but not exact. DHS believes this result, summarized in row
F of Table 13, is sufficient to address the commenters' concerns about
ensuring opportunity for all corresponding wage levels.
f. Recommendations To Set Minimum Salaries for Each Wage Level
Comment: Numerous commenters proposed setting various minimum
salaries for each wage level. The commenters' suggestions varied
widely, requesting DHS to set the level I minimum salary as low as
$120,000 per year to as high as $175,000 per year, and the level IV
minimum salary to be as low as $250,000 per year to as high as $800,000
per year.
Response: DHS declines the suggestions to set minimum salaries for
each wage level. The weighted selection process will use the OEWS wage
levels, which is already used in the H-1B program, publicly accessible,
and updated annually. Importantly, OEWS prevailing wages and wage
levels are set by DOL. DHS does not have the expertise nor manpower to
create an entirely new prevailing wage system that would need to be
regularly updated, so this is not a feasible alternative.
g. Recommendations Regarding SOC Codes
Comment: Some commenters cautioned that weighting by wages could
unfairly weight identical SOC codes differently based on location. The
commenters recommended DHS weight offers by SOC codes and ``local SOC
percentile'' so that offers that are equally competitive for their
respective location receive the same lottery weight, regardless of
location. Likewise, a commenter noted that the proposed weighting
approach could unfairly disadvantage professionals in certain
occupations and locations; this commenter recommended that USCIS
[[Page 60916]]
weight wages within each occupation rather than across all fields.
Response: DHS believes that the weighted selection process proposed
in the NPRM and finalized in this rule addresses the concerns raised by
these commenters. Wage levels are based on the OEWS survey wage
distribution for a specific occupation and location, with wage level I
currently set at approximately the 17th percentile of the OEWS wage
distribution for the relevant occupation in the relevant location, wage
level II set at approximately the 34th percentile, wage level III set
at approximately the 50th percentile, and wage level IV set at
approximately the 67th percentile. 90 FR 45986, 45990 (Sept. 24, 2025).
Accordingly, by using wage levels, the weighted selection process takes
into consideration variations in wages due to different occupations and
geographic locations and avoids favoring particular occupations or
locations.
h. Recommendation Regarding Four-Digit SOC Codes
Comment: In order to mitigate the adverse effects of occupational
misclassification during registration, a commenter recommended that
employers use a four-digit, instead of a six-digit, SOC code to
identify the wage level for registration purposes. According to this
commenter, employers would select the six-digit occupation with the
highest median wage within its four-digit SOC family, and then map
their proffered wage to the corresponding wage level. For example,
applications with any computer occupation (15-12XX) would map their
wage levels to 15-1221, Computer and Information Research Scientists.
The commenter concluded that correcting occupational misclassification
this way is analogous to the proposed rule's handling of multiple
worksite locations and would prevent gaming of the weighted selection
process through the selection of favorable SOC codes.
Response: DHS is also concerned with employers gaming the system
through SOC codes and appreciates this suggestion. However, selecting
the six-digit occupation with the highest median wage within its four-
digit SOC family code--rather than the six-digit SOC code corresponding
to the nature of the job offer--could cause confusion for stakeholders
as it deviates from long-standing DOL prevailing wage guidance on how
to choose the correct SOC code and wage level for the employer's job
opportunity.\89\ DHS believes there are sufficient provisions to detect
and deter occupational misclassification during registration and
declines this suggestion.
---------------------------------------------------------------------------
\89\ DOL, ETA, Prevailing Wage Determination Policy Guidance:
Nonagricultural Immigration Programs (last modified Nov. 2009),
https://www.dol.gov/sites/dolgov/files/eta/oflc/pdfs/
npwhc_guidance_revised_11_2009.pdf.
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i. Recommendations Related to U.S. Education
Comment: Commenters provided various suggestions on how to
prioritize registrations based on a prospective beneficiary's U.S.
education or degree. Some commenters suggested prioritizing graduates
from U.S. universities regardless of their starting salary level. To
retain talent at all levels, several commenters suggested giving
additional weight or preference to graduates of U.S. institutions, with
some commenters suggesting extra consideration for graduates of top-
tier schools, graduates completing U.S. master's or higher degrees, or
graduates of highly ranked U.S. universities. These commenters reasoned
that the selection process should reward individuals who are already
invested in U.S. institutions, and have paid high amounts of tuition
and undergone a rigorous admission process, and successfully
assimilated into U.S. culture and values. Some commenters specifically
recommended that DHS give priority to individuals who have completed
OPT in the United States or who are in F-1 status.
Some commenters recommended exempting registrations towards the
master's degree cap from the proposed wage-based weighting. Other
commenters wrote that only beneficiaries with Ph.D.s should be
admitted, or that beneficiaries with Ph.D.s should automatically be
assigned to level IV in the registration. A commenter proposed a
qualification-based allocation system that would assign higher
selection priority to Ph.D. holders, followed by master's degree
holders, and then bachelor's degree holders.
Some commenters suggested prioritizing applicants with U.S. degrees
in STEM fields. A commenter recommended, as one potential alternative
to the proposed wage-weighted selection process, that DHS apply
weighting by education level with higher weights for advanced degrees,
particularly in STEM fields, to prioritize beneficiaries whose skills
most closely align with U.S. economic needs, reasoning that this would
avoid distortions inherent to a percentile-based OEWS wage level
weighting. More specifically, another commenter recommended awarding
one additional registration chance to U.S.-educated applicants who
submit a registration within 12 months of graduation, with a second
additional chance for graduates in critical STEM fields identified by
the administration. Some commenters recommended exempting or otherwise
prioritizing STEM Ph.D.s, to ensure intelligent individuals, invested
in the U.S. education system, are able to contribute to the United
States, even if they have low wages.
Response: DHS declines these suggestions to further prioritize
registrations based on a prospective beneficiary's U.S. education or
degree. Registrations or petitions, as applicable, submitted for
beneficiaries who have earned a master's or higher degree from a U.S.
institution of higher education already have a higher chance of
selection through the administration of the selection process. DHS has
already reversed the order in which USCIS selects registrations or
petitions, as applicable, which resulted in an increase in the number
of H-1B beneficiaries with a master's degree or higher from a U.S.
institution of higher education selected.\90\
---------------------------------------------------------------------------
\90\ ``Registration Requirement for Petitioners Seeking To File
H-1B Petitions on Behalf of Cap Subject Aliens,'' H-1B Registration
Final Rule, 84 FR 888, 890 (Jan. 31, 2019).
---------------------------------------------------------------------------
DHS declines to adopt the suggestion to give every F-1 graduate an
equal entry-level opportunity, as this goes against the stated goal of
the rule, which is to generally favor the allocation of H-1B visas to
higher-skilled and higher-paid aliens. DHS also declines to ensure that
U.S.-educated recent graduates, including those in critical fields, are
given increased weighting in the selection process. The weighted
selection process discussed in the NPRM is intended to incentivize
employers to pay a higher proffered wage to a certain beneficiary to be
more competitive in the H-1B selection process. 90 FR 45986, 45990
(Sept. 24, 2025). This process also maintains the opportunity for
employers to secure H-1B workers at all wage levels, thus it will not
completely leave out aliens in entry-level positions. Similarly, DHS
declines to give priority to aliens who completed OPT in the United
States.
DHS believes that prioritizing an alien based on their degree
field, including whether their degree is from a STEM field, is not
necessary. The purpose of this rule is not to prioritize the admission
of foreign STEM workers. Further, DHS generally notes that prioritizing
registrations on multiple
[[Page 60917]]
characteristics--for example, a STEM degree plus an advanced degree--is
not feasible, as such an approach could be overly complicated,
unpredictable, and subjective. Therefore, DHS declines to adopt the
commenters' suggestions.
Comment: Some commenters recommended exempting international
students who have graduated from U.S. institutions from the visa cap or
wage selection requirements, or both. Another commenter recommended
using a lottery system for graduates already in the United States and
only applying wage-based selection to beneficiaries outside the United
States. One commenter stated support for expanding and preserving the
advanced degree exemption selection.
Response: DHS did not propose exempting students who have graduated
from U.S. institutions from the cap or granting this group a carve-out
from the proposed rule and declines to do so now. However, many
students may already qualify for the annual, numerically limited
exemption from the 65,000 cap for H-1B workers who have earned a
qualifying U.S. master's or higher degree. See INA sec. 214(g)(5)(C), 8
U.S.C. 1184(g)(5)(C). DHS does not have the authority to expand this
congressionally created, numerically limited exemption.
j. Recommendations Related to Particular Industries, Occupations, and
Employer Sizes
Comment: Commenters expressed concerns that the wage-based approach
does not account for wage variations across various industries and
sectors. For example, some commenters recommended that DHS consider
additional weighting for registrations in ``critical sectors'' or
``essential industries'' such as AI, quantum computing, semiconductors,
cybersecurity, aerospace, and healthcare. Other commenters proposed
implementing industry carve-outs or quotas for ``critical sectors'' to
ensure that these roles are prioritized over others.
Some commenters requested alternatives specific to the tech
industry. For example, a commenter said the proposed weighting approach
should only apply to the tech industry where employers can afford high
wages, while registrations from all other industries should be weighted
as level IV by default. Other commenters recommended disallowing level
I or II registrations from tech industry companies, and some commenters
recommended revising the rule to ensure that it does not unfairly favor
the IT industry.
Several commenters noted that certain industries like manufacturing
or some engineering fields generally pay lower salaries compared to
other industries, such as the tech industry, and recommended that H-1B
visa slots be allocated by industry, rather than through a general
pool. A commenter urged USCIS to adapt the proposed rule to mitigate
negative effects on the manufacturing sector, particularly by reserving
a portion of the cap or enhancing selection odds for lottery
registrations for small and medium-sized manufacturers applying for H-
1B visas for engineering and similar roles.
Other commenters expressed concern that the proposed rule
disadvantages employers in lower paying, non-tech sectors, and
recommended various measures, such as bonus weighting or special carve-
outs. Commenters said the proposed approach may unfairly disadvantage
public sector and local government functions where wages are typically
lower. A commenter expressed concern about the proposed rule's effect
on school districts' ability to address staffing shortages amid a
national teacher shortage and recommended DHS prioritize K-12 teaching
as a priority occupation eligible for additional weighting. A commenter
suggested prioritizing teachers, especially in areas of shortage, such
as math and science. Other commenters suggested various alternatives
for universities, nonprofits, and research institutions, as well as for
small employers and startups. These commenters indicated that these
alternative weighting methods would help ensure employers are not
disadvantaged solely because they are unable to pay high salaries
compared to other employers.
Commenters suggested exceptions for their industry, such as
exempting all alien physicians from the rule's weighted selection
process, or weighting all healthcare workers at wage level IV. Another
commenter generally recommended exempting all doctors and nurses from
the proposed rule. Several commenters requested special consideration
for healthcare professionals in underserved and rural areas. For
example, a commenter recommended implementing exceptions for physicians
practicing in shortage areas and in lower-paying but needed specialties
like primary care. Another commenter suggested that DHS consider
special weighting or exemption for healthcare occupations designated by
DOL as shortage occupations or listed on Schedule A. A different
commenter recommended adjusting the weighting formula for occupations
where supervised clinical training is required, including for
occupational and physical therapists, noting that the healthcare field
depends on a structured, supervised clinical hierarchy that by
definition are wage levels I or II. Another commenter recommended that
the rule exclude the legal industry, stating that big law firms already
pay high salaries and thus would be unfairly advantaged in the weighted
lottery.
Response: DHS declines to adopt special carve outs for certain
industries or sectors or give additional weighting for registrations in
``critical sectors'' or ``essential industries.'' Similarly, DHS
declines to provide exemptions, weighting, or other special treatment
for small businesses, non-profits, the public sector, startups, or
other specific occupations or fields from the rule. While DHS
appreciates the challenges faced by certain sectors, industries, and
types or sizes of employers, carving out exceptions for some would be
highly problematic. DHS believes that such an approach would be overly
complicated, unpredictable, and subjective. For example, DHS recognizes
that there are many occupations that can be considered ``critical'' or
``essential'' now but could change in the future. Making these types of
determinations is not feasible for efficiently conducting the
registration selection process on an annual basis. Therefore, DHS
declines to adopt these commenters' suggestions.
k. Recommendations To Weight Other ``Merit-Based'' Factors Related to
the Petitioner
Comment: Expressing concern that the proposed rule would not
achieve its goals, multiple commenters recommended that DHS consider
alternatives that incorporate a more ``merit-based'' approach that
would weight multiple factors. Commenters provided various suggestions
for factors that are specific to the petitioning employer, such as, but
not limited to: the petitioner's industry and whether such industry is
critical, essential, or important to the national interest; company
type and size; occupational and labor-market shortages; industry or
occupational need; employer demand or need for the position; the nature
of the job duties, including the level of complexity or rarity of the
job; societal impact; employer credibility and compliance history;
whether the petitioner is in a ``high-unemployment commuting zones and
for occupations with plentiful domestic supply''; the employer's
percentage of ``local'' or U.S. workers; or whether the hiring of the
foreign worker displaces a U.S. worker. The commenters generally
claimed that weighting various factors would make
[[Page 60918]]
the lottery process more fair and balanced, as the proposed rule's
approach of using salary as a proxy for skill may be skewed towards
certain types of employers.
Response: DHS declines to adopt the commenters' suggestions. As
previously discussed, DHS believes that identifying and weighing
multiple factors is not feasible, as such an approach could be overly
complicated, unpredictable, and subjective. Incorporating multiple
factors would add unnecessary complexity into the process and frustrate
the goal of administering the cap selection processing in an efficient
and effective manner. Further, some of these additional factors, such
as high unemployment commuting zones or whether the employer recently
conducted layoffs, are not feasible for efficiently conducting the
selection process on an annual basis and may involve determinations
that are beyond DHS's expertise.
Furthermore, the goal of this rulemaking is not to favor employers
with certain characteristics in the allocation of H-1B visas. Rather,
the goal of this rule is to efficiently and effectively implement a
weighted selection process that would generally favor the allocation of
H-1B visas to higher-skilled and higher-paid aliens.
l. Recommendations To Weight Other ``Merit-Based'' Factors Related to
the Beneficiary
Comment: Numerous commenters requested DHS consider various factors
that are specific to the individual beneficiary. These factors include,
but are not limited to, the beneficiary's: degree field; industry
certification; entrepreneurial promise; whether the beneficiary is a
``founder'' of a bona fide startup or is an owner of the petitioner;
U.S. work history and professional experience; seniority; professional
tenure; patents, research contributions; personal references;
commitment to professional development; demonstrated expertise in
critical technology or STEM fields; whether the beneficiary has
completed or are still studying under OPT; length of legal residence in
the United States; IQ; and English proficiency. The commenters
generally claimed that weighing various factors would make the lottery
process more fair and balanced, as the proposed rule's approach of
using salary as a proxy for skill does not capture all indicators of a
beneficiary's value, including his or her talent, potential, and
contributions to an employer.
Some commenters suggested giving higher weight to beneficiaries
based on the number of prior H-1B registration attempts, such that a
person in their second or third attempt would get a higher priority.
Another commenter made a similar recommendation, but added that for
candidates that are selected but do not apply, their chances should be
reduced if they enter the lottery again. Other commenters suggested
providing ``last-chance'' priority (e.g., +1 weight or guarantee
minimum selection) for students transitioning from F-1/OPT to H-1B.
Another commenter said the rule should grandfather current F-1/OPT
cohorts and phase-in changes, so current students are not suddenly
trapped.
Response: DHS declines to adopt the commenters' suggestions. As
previously discussed, DHS believes that identifying and weighing
multiple factors is not feasible, as such an approach could be overly
complicated, unpredictable, and subjective. DHS acknowledges that
salary is a proxy for skill, but maintains that this approach is
reasonable and optimal because it provides ease of implementation,
predictability, and objectivity that would not be found in a multi-
factor approach, and accomplishes the policy goal of increasing the
chance of selection for beneficiaries who will be paid a wage that
corresponds to a higher wage level.
Regarding the suggestions to specifically consider a beneficiary's
prior H-1B registration attempts or time left in F-1 status, DHS does
not believe these factors are relevant to a beneficiary's skill level.
As explained in the NPRM, the purpose of the weighted selection process
is to generally favor the allocation of H-1B visas to higher-skilled
and higher-paid aliens. Facilitating the admission of higher-skilled
workers would benefit the U.S. economy and increase the United States'
competitive edge in attracting the ``best and the brightest.'' 90 FR
45986, 46011 (Sept. 24, 2025). Giving priority to F-1 students or
beneficiaries solely because they have made several unsuccessful
attempts to obtain an H-1B visa would not achieve this purpose.
Comment: A commenter recommended that USCIS allow companies to
purchase additional chances in the lottery for particular candidates,
reasoning that this would increase the likelihood of selection for
priority candidates while remaining consistent with the lottery
system's intent and avoiding wage discrimination against U.S.
employees. Citing two articles, another commenter said that a better
way is to prioritize workers with greater economic value by
``auctioning'' to employers the right to hire a foreign worker through
the H-1B program.
Response: DHS declines to allow companies to ``purchase'' or create
an ``auction'' as suggested. Similar to DHS's concerns with a selection
method based purely on the highest salary, DHS believes that auctioning
registrations to the highest bidders would favor large corporations
with more resources. Further, with respect to the concerns about wage
discrimination against U.S. employees, as explained elsewhere, DHS does
not agree that the rule would result in or encourage such
discrimination. The rule does not mandate what wages employers must pay
their employees and does not require employers to artificially raise
wages. DHS believes businesses are unlikely to offer higher wages if
the employee's skills do not justify the cost. DHS expects that
companies will continue to make business decisions that align with
their operational and financial interests.
m. Other Recommendations Regarding the Registration Process
Comment: Commenters suggested that the proposed weighted selection
process could still be gamed unless DHS restricts the maximum number of
registrations that may be submitted by a single company or its
affiliated entities.
Response: While DHS appreciates the concerns the commenters raised,
the intent of the weighted selection process is to 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. It is unclear that limiting the maximum number of
registrations a company or related entity may submit in a fiscal year
would accomplish this goal. Further, it would not be possible to
determine at the registration stage whether a registrant is affiliated
with or related to another registrant, as USCIS does not adjudicate the
registration. Therefore, DHS declines this suggestion.
Comment: A commenter suggested, without further elaboration,
``integrating a beneficiary-centric appeal process'' for workers to
report occurrence of wage reduction or misrepresentation.
Response: DHS is unclear what a ``beneficiary-centric appeal
process'' means. Regardless, DHS encourages individuals to report
instances of wage reduction or misrepresentation to DOL or USCIS,
depending on the specific facts, through existing channels. DHS
maintains a tip form where individuals can report these and other
issues of
[[Page 60919]]
compliance and fraud.\91\ When investigating tips received, USCIS also
works with Immigration and Customs Enforcement and DOL, referring cases
as needed to those agencies.
---------------------------------------------------------------------------
\91\ See the ICE Tip Form for reporting suspected immigration
benefit fraud and abuse, https://www.ice.gov/webform/ice-tip-form.
---------------------------------------------------------------------------
n. Recommendations To Strengthen Enforcement Actions
Comment: Many commenters stated that DHS should strengthen its
enforcement actions against bad actors and fraudulent companies and
provided alternative anti-fraud measures that DHS could pursue instead
of broadly changing the registration system. Some of these commenters
stated that targeted or more effective enforcement is preferable to
broadly changing the entire registration system which could impact bona
fide employers and prospective beneficiaries. Some commenters similarly
reasoned that instead of adding burdens on all applicants, USCIS should
focus on tracking, auditing, and penalizing the bad actors or
fraudulent agencies thereby not risking harming the entire system when
only a minority of players are responsible for abuses. The commenters'
various anti-fraud recommendations included:
Increased targeted audits and compliance checks,
background checks;
Post-approval and post-activation audits to verify that
employers follow through on wage and job commitments;
Run post-selection audits against DOL OEWS and LCA data;
Annual compliance reporting to monitor whether wage
commitments are being honored;
Mandatory post-selection wage verification to confirm that
promised wages are actually paid;
Verified reporting of work hours and actual worksite
locations to ensure compliance with labor conditions;
Stricter oversight of remote work arrangements to prevent
misrepresentation of job locations;
Upfront scrutiny of SOC code classifications to reduce
manipulation of job categories;
Increased penalties for fraudulent registrations,
violators, and those who have misrepresented facts.
Closer scrutiny of certain types of companies; and
Bans or caps on registrations from firms with patterns of
overuse;
Bans on outsourcing companies or third-party placements.
These commenters said that targeted enforcement would better
protect program integrity while preserving fairness for bona fide
petitioners.
Response: While DHS agrees with the commenters that stronger
measures against fraud and abuse of the H-1B program are necessary, DHS
disagrees that the weighted selection process is unnecessary. The
changes finalized in this rule 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. This rule
represents an important step the agency is taking towards improving the
integrity of the overall H-1B program.
With respect to the suggestions to increase post-selection
verification efforts, USCIS officers are trained to appropriately
scrutinize each petition to ensure eligibility during the adjudication
process, including scrutinizing the wage level, SOC code, and area of
intended employment selected on the LCA to determine that the LCA
properly corresponds to the petition, and ensuring that the petition
includes the same identifying and position information. 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).
Regarding comments about increasing upfront scrutiny at the
registration stage, USCIS does not adjudicate registrations. Because
registration is not intended to replace the petition adjudication
process or to assess eligibility, USCIS cannot feasibly determine at
the time of registration selection whether a registrant has manipulated
SOC codes.
Finally, it is noted that commenters provided various other
suggestions about increasing enforcement or anti-fraud activities.
Although DHS is concerned about preventing fraud and abuse in the H-1B
program, this rule is narrowly focused on governing the process by
which USCIS selects H-1B registrations for unique beneficiaries for
filing H-1B cap-subject petitions. Therefore, DHS considers those
comments out of scope. However, DHS may consider ways to improve the
integrity of the H-1B program through future rulemakings and policy.
o. Recommendations for Pilot Program
Comment: Some commenters generally recommended starting with a
pilot program to assess the proposed changes on a smaller scale, rather
than finalizing the rule as proposed. Other commenters recommended that
DHS proceed with a pilot program, using a multi-factor model, including
weights for occupational shortages, role complexity, and employer size,
with wages normalized to localities and published transparently,
accompanied by a rigorous impact analysis.
Response: DHS declines to adopt these recommendations and will
finalize the rule as proposed. As previously noted, DHS believes that
identifying and weighing multiple factors is not feasible, as such an
approach could be overly complicated, unpredictable, and subjective.
p. Recommendations for Staggered Filing
Comment: A commenter who supported the proposed rule recommended
having staggered filing deadlines for petitions by wage levels as an
alternative in case the proposed rule is met with legal challenges.
Under this alternative, USCIS could have a first filing period, where
only petitions with jobs paying level IV are considered. Once all the
level IV petitions are submitted and approved, then a second filing
period at a later date could be set to receive only petitions with jobs
paying level III wages. After those are collected and approved, if
there are any visas remaining under the H-1B cap, then a filing period
for level II wages would be next, and finally a filing period for level
I. This way, all of the petitions would not be submitted at once,
thereby still allowing USCIS to adjudicate and allocate petitions ``in
the order in which'' they were filed, as the statute requires. If there
were more petitions than available H-1B slots at a particular wage
level, there could be a ``mini-lottery'' within that wage level.
Another commenter similarly stated that the proposed weighted selection
scheme is lawful but additionally suggested amending the proposed
process to ``more closely align with the statute.'' Specifically, the
commenter suggested that USCIS create different ``application windows''
for each wage level starting with wage level IV and proceeding in
descending order such that when USCIS selects a level IV petition it
will have been received before any petition with a lower wage level,
consistent with INA sec. 214(g)(3). The commenter asserted that this
process would offer increased
[[Page 60920]]
predictability and would better withstand legal challenges.
Response: DHS declines the suggestions to use staggered filing
deadlines or petition filing windows by wage levels. DHS believes these
suggestions are not necessary because, as explained above, this rule is
consistent with and permissible under DHS's general statutory authority
provided in INA secs. 103(a), 214(a), and (c); 8 U.S.C. 1103(a),
1184(a), and (c); and HSA sec. 102, 6 U.S.C. 112.
2. Effective Date and Implementation
Comment: Some commenters who supported the rule urged DHS to
implement the changes immediately before the next H-1B registration
season.
Response: This rule will be effective in time for the upcoming FY
2027 registration period, which is set to begin in March 2026.
Comment: Some commenters who disagreed with the proposed rule said
that, if USCIS were to finalize the proposed rule, it should refrain
from implementing the proposed rule for the FY 2027 H-1B registration
season because changes so late in the year would adversely impact U.S.
employers, immigration lawyers, and individuals. The commenters
explained that hiring decisions and filing processes and procedures
have already begun based on the existing registration system, so
delaying implementation until after the FY 2027 cap filing season would
give the regulated community time to adapt to the new process. A
commenter stated that a phased-in implementation approach would be
consistent with principles of regulatory fairness and would allow
stakeholders to adjust hiring strategies and educational planning
accordingly. Likewise, a commenter suggested that implementation should
be delayed until at least the FY 2028 H-1B cap filing season. The
commenter stated that USCIS should provide a minimum of six months in
advance of any H-1B registration period, as U.S. employers need time to
adapt their recruitment procedures, hiring process, and filing process
to the new selection process. Another commenter suggested withdrawing
or delaying the implementation of the rule by two years. A different
commenter suggested implementing the weighting gradually, with
transparent data collection and public reporting on effects by wage
level, employer size, and geographic area. A few commenters urged USCIS
to engage directly with stakeholders before finalizing any wage
selection rule.
Response: DHS is not delaying the implementation of this rule. DHS
believes that this rule is being published with sufficient time to
allow employers to plan appropriately prior to the start of the
registration period for FY 2027. While some petitioners may benefit
from additional time to adjust to the new weighted selection process,
DHS does not believe that petitioners will face significant adverse
impacts with the implementation of this change in the selection process
and believes that employers have sufficient time to make any decisions
they believe are needed as a result of this rule, such as increasing
proffered wages to increase the odds of selection. In addition, DHS
believes that it is important to implement the rule as soon as possible
to prevent further adverse impacts on U.S. workers who are competing
with lower paid H-1B workers.
3. Processing Time Outlook
Comment: Some commenters remarked that the current system is
already difficult for people to navigate, and the proposed rule would
make the system more confusing and add unnecessary complexity and
burden. Other commenters similarly noted that the proposed weighted
selection process would be far more complex, resource intensive, and
lead to adjudication delays, inconsistent adjudications, and possibly
filing errors or erroneous rejections. A commenter expressed concern
that the new, complex weighted process would increase the risk of
technical system errors and unfair rejections due to factors outside of
the petitioner's control, which could lead to delays and add on to what
some commenters described are already lengthy processing times. Some
commenters stated that increased complexity and bureaucracy would lead
to more costs for the government, petitioners, and taxpayers.
Response: DHS does not agree that the weighted selection process
implemented through this rule adds unnecessary complexity or confusion
for stakeholders. DHS also does not agree that the weighted selection
process would lead to lengthy adjudication or processing times. First,
DHS notes that USCIS does not adjudicate the registration. If
commenters were referring to the petition adjudication process, DHS
acknowledges there may be some added complexity to the adjudication,
for which DHS will need to train officers, and USCIS adjudicators will
need additional time to review newly required information during the
adjudication of the petition. However, DHS does not anticipate any
unnecessary delays and believes that any additional adjudicative burden
will be outweighed by the overall benefits of the weighted selection
system. With respect to the commenters' concerns about increased costs
to the government, this rule does not impact current H-1B filing or
registration fees. In general, USCIS reviews the fees for its services
on a biennial basis. If the review determines the current fees are
inadequate to recover costs, or that they otherwise need to be
adjusted, then the fee schedule adjustment would be determined at
USCIS' next comprehensive biennial fee review.\92\ It is unclear what
other costs to the government the commenters contemplated. Regarding
the claim that this rule would increase costs to taxpayers, DHS
disagrees and finds these comments unclear as to how or why this rule
would impact taxpayers in general as USCIS is primarily a fee-funded
agency and is not dependent on taxpayer dollars.\93\
---------------------------------------------------------------------------
\92\ See USCIS, USCIS Policy Manual, Volume 1, Part B, Chapter
3--Fees, https://www.uscis.gov/policy-manual/volume-1-part-b-chapter-3 (last modified Nov. 3, 2025) (explaining that USCIS
reviews the fees for its services on a biennial basis, at which time
it reviews to determine if current fees are inadequate to recover
costs or otherwise need to be adjusted).
\93\ See USCIS, USCIS Policy Manual, Volume 1, Part B, Chapter
3--Fees, https://www.uscis.gov/policy-manual/volume-1-part-b-chapter-3 (last modified Nov. 3, 2025) (``Unlike most government
agencies, U.S. Citizenship and Immigration Services (USCIS) is not
dependent on taxpayer dollars . . . USCIS receives 96 percent of its
funding from filing fees and not from congressional
appropriations.'').
---------------------------------------------------------------------------
With respect to technical errors, USCIS is confident that the new
system and process will be operable in time for the FY 2027
registration and cap filing season. In the unlikely event that USCIS
discovers that the new weighted selection process is inoperable in time
for the FY 2027 season, USCIS would take remedial measures at that
time.
4. Data and Transparency
Comment: A commenter recommended publishing the exact weighting
scheme in advance, including any caps, so employers and schools can
plan accordingly. The commenter requested DHS publish ``final technical
guidance'' and ``selection outcomes by wage level, degree type,
employer size, North American Industry Classification System code, and
geography,'' adding that transparency will let DHS validate that the
system is meeting program goals without unintended effects. Another
commenter requested clear guidance on how geographic wage differences
will be handled. A different commenter suggested publishing annual,
[[Page 60921]]
anonymized statistics on weighting outcomes by wage level, SOC code,
and metro area to allow labor markets to adjust and deter misuse.
Response: DHS believes that the regulations finalized by this rule
sufficiently detail the weighted selection process for the H-1B cap. As
described in the NPRM and codified at new 8 CFR
214.2(h)(8)(iii)(A)(4)(ii) and (5)(ii), a beneficiary assigned wage
level IV will be entered into the selection pool four times, a
beneficiary assigned wage level III will be entered into the selection
pool three times, a beneficiary assigned wage level II will be entered
into the selection pool two times, and a beneficiary assigned wage
level I will be entered into the selection pool one time. It is unclear
what ``caps'' the commenter is referring to, as DHS is not implementing
caps of any particular wage level or otherwise altering the existing H-
1B cap.
Regarding the request to publish data on selection outcomes, DHS
notes that it is not legally required to publish such information.
However, DHS already makes certain information about H-1B beneficiaries
public on an annual basis. Specifically, pursuant to Section 416(c)(2)
of the American Competitiveness and Workforce Improvement Act of 1998
(ACWIA),\94\ DHS submits information on the countries of origin and
occupations of, educational levels attained by, and compensation paid
to, aliens who were issued H-1B visas or otherwise provided H-1B
nonimmigrant status during the previous fiscal year to the Committees
on the Judiciary of the United States House of Representatives and the
Senate on an annual basis.\95\ DHS plans to closely monitor the impacts
of weighting under this rulemaking and will consider what information,
if any, it may be appropriate to make publicly available beyond what
USCIS already provides through the annual report to Congress and the H-
1B Data Hub.\96\
---------------------------------------------------------------------------
\94\ Public Law 105-277, div. C, tit. IV, 112 Stat. 2681.
\95\ See, e.g., USCIS, Characteristics of H-1B Specialty
Occupation Workers; Fiscal Year 2024 Annual Report to Congress;
October 1, 2023-September 30, 2024 (Apr. 29, 2025).
\96\ USCIS, H-1B Employer Data Hub, https://www.uscis.gov/tools/
reports-and-studies/h-1b-employer-data-
hub#:~:text=The%20H%2D1B%20Employer%20Data%20Hub%20contains%20data,qu
ery%2Dspecific%20data%20in%20Excel%20or%20.csv%20format (last
visited Dec. 5, 2025).
---------------------------------------------------------------------------
Comment: A commenter said the need for the proposed weighting
approach is premature because DHS has not yet published a transparent
assessment of FY 2025-FY 2026 outcomes under the beneficiary-centric
rule, which was designed to reduce gaming and ensure each beneficiary
has the same chance of selection. The commenter further said that DHS
must first provide evidence that ``material integrity gaps persist''
that the beneficiary-centric changes did not solve but that wage
weighting would. Another commenter said that the proposed rule does not
account for the recently implemented H-1B Modernization Rule and the
beneficiary-centric registration system, which have significantly
strengthened the integrity of the H-1B program.
Response: DHS disagrees with these commenters. Beneficiary-centric
selection and weighted selection serve different, though complementary,
policy goals. It is therefore appropriate to have both beneficiary-
centric selection and weighted selection. In February 2024, DHS amended
its regulations to implement a beneficiary-centric selection process
for H-1B registration 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). The beneficiary-centric selection process is
needed to prevent unscrupulous actors from unfairly increasing the odds
that a beneficiary will be selected, thus it is important to keep the
beneficiary-centric selection process in place. The goal of this rule
is to implement a selection process that builds on the beneficiary-
centric selection process and favors the allocation of H-1B visas to
higher-skilled and higher-paid workers. Even with the weighted
selection process, the need to prevent unscrupulous actors from
unfairly increasing the odds of selection remains. Therefore, the wage-
based selection process finalized in this rule will operate in
conjunction with the existing beneficiary-centric selection process and
there is no reason to delay this rule. Similarly, the commenters have
failed to explain how they believe the integrity measures in the final
rule ``Modernizing H-1B Requirements, Providing Flexibility in the F-1
Program, and Program Improvements Affecting Other Nonimmigrant
Workers'' impact the weighted selection process. While the integrity
measures in that rule have value, they did not implement a weighted
selection process to favor the allocation of H-1B visas to higher-
skilled and higher-paid aliens. The weighted selection process will
build upon improvements made in prior rules, and the commenters
provided nothing to suggest otherwise.
5. Comments Related to Presidential Proclamation 10973, Restriction on
Entry of Certain Nonimmigrant Workers (September 19, 2025)
Comment: Some commenters who opposed the rule stated that the
impact of the proposed rule must be considered in combination with the
$100,000 fee. For instance, commenters noted that certain businesses,
such as small and mid-sized businesses, startups, nonprofits, and
universities, would essentially be priced out of the H-1B program.
Other commenters remarked that the combination of the new fee plus the
weighted registration would deter skilled international students and
workers from choosing to work and study in the United States. A few
commenters further argued that the fee would be cost-prohibitive and
thus employers in less geographically-desirable locations will have
even more difficulty filling open positions. Another commenter noted
that the new fee along with a new weighted lottery system introduces
two significant procedural changes which will likely cause investment
uncertainty and risk for companies that utilize H-1B visas, which will
harm U.S. companies and not help U.S. workers.
Response: DHS disagrees with these commenters. In the H-1B
Proclamation, President Trump noted that the H-1B program ``has been
deliberately exploited to replace, rather than supplement, American
workers with lower-paid, lower-skilled labor.'' 90 FR 46027 (Sept. 19,
2025). The President concluded that it was, therefore, ``necessary to
impose higher costs on companies seeking to use the H-1B program in
order to address the abuse of that program while still permitting
companies to hire the best of the best temporary foreign workers.'' 90
FR 46027 (Sept. 19, 2025). The President, in the H-1B Proclamation,
also directed the Secretary of Homeland Security to ``initiate a
rulemaking to prioritize the admission as nonimmigrants of high-skilled
and high-paid aliens.'' 90 FR 46027 (Sept. 19, 2025). This rule is
consistent with the President's policy direction and is an important
component of the effort to favor the allocation of H-1B visas to
higher-skilled and higher-paid aliens. That is, even where the H-1B
Proclamation applies, this rule is needed to help ensure 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.
Further, DHS notes that the $100,000 payment required by the H-1B
[[Page 60922]]
Proclamation does not apply to all H-1B petitions. For example, USCIS
has clarified that the H-1B Proclamation ``does not apply to a petition
filed at or after 12:01 a.m. eastern daylight time on September 21,
2025, that is requesting an amendment, change of status, or extension
of stay for an alien inside the United States where the alien is
granted such amendment, change, or extension.'' \97\ In addition,
exceptions to the $100,000 payment may be granted by the Secretary of
Homeland Security to any individual alien, all aliens working for a
company, or all aliens working in an industry. Finally, the H-1B
Proclamation will expire, absent extension, 12 months from its
effective date. This rule, in contrast, will continue indefinitely.
---------------------------------------------------------------------------
\97\ USCIS, H-1B Specialty Occupations, https://www.uscis.gov/working-in-the-united-states/h-1b-specialty-occupations (last
modified Oct. 20, 2025).
---------------------------------------------------------------------------
For these reasons, DHS believes that this rule remains necessary to
better ensure that initial H-1B visas and status grants would more
likely go to the highest-skilled or highest-paid beneficiaries. While
DHS recognizes that this could result in increased costs for a
business, and that the combined effect of the two policies could
further disadvantage businesses that lack the resources to pay the
$100,000 fee and higher wages, DHS believes that having a greater
chance to recruit or retain talented employees may offset these
increased costs. If a company is unable to pay an alien a higher wage
for a greater chance of selection, they could alternatively try to find
and hire a U.S. worker.
Comment: A few commenters noted the combined impact of the $100,000
fee with the proposed rule. A commenter stated that the $100,000 fee
represents a substantial enough surcharge such that it already limits
H-1B petitions to beneficiaries who are ``very valuable to the company
and America.'' The commenter suggested that DHS should first allow more
time to measure the impact of these recent changes on the H-1B program
without further complicating it with a weighted selection process.
Another commenter said that the new $100,000 fee helps to ensure that
only genuine and serious H-1B filings will be submitted and will
address issues of registration abuse. This commenter concluded that the
new fee renders a weighted lottery ``unnecessary and redundant.''
Response: DHS disagrees with these commenters. As previously
explained, the weighted selection process implemented in this
rulemaking complements the stated goals of the H-1B Proclamation, in
that it seeks to ``prioritize the admission as nonimmigrants of high-
skilled and high-paid aliens.'' 90 FR 46027 (Sept. 19, 2025). Further,
the H-1B Proclamation applies to a subset of petitions, whereas this
rule applies to all cap-subject petitions, and the H-1B Proclamation
has an expiration date, whereas this rule does not. DHS therefore
believes that this rule remains necessary, and that there is no need to
allow more time for the implementation of this final rule.
G. Statutory and Regulatory Requirements
1. Administrative Procedure Act (APA)
a. Request for 30-Day Extension
Comment: Some commenters requested that USCIS extend the comment
period by 30 days, stating that given the complexity and impact of the
proposed changes the current 30-day window is insufficient for
meaningful public input on a rule of this scope. For example, one such
commenter cited the rule's economic significance, technical detail, and
broad impact across sectors, and said that a longer period would
support informed public participation, strengthen the administrative
record, and align with established practices under the APA and
Executive Order 12866.
Commenters stated that E.O.s 12866 and 13563 recommend a minimum
60-day comment period for economically significant regulatory actions
and wrote that DHS's delay in publishing the rule undermines the
urgency argument. The commenters also said that the government shutdown
on October 1, 2025, disrupted normal operations since it resulted in
the cessation of operations of National Archives and Records
Administration (NARA), which controls the Federal Register. The
commenters said that although public comments can still be submitted
during the shutdown, NARA noted on the Federal Register page that it
will not provide any technical assistance. The commenter did not
explain what technical assistance they may have required in this
regard.
The commenters expressed concern over the lack of prior notice
about the rule and cited past DHS statements and court decisions that
questioned the legality of prioritizing H-1B petitions based on wages.
Several commenters requested more time to conduct economic and legal
analysis, collect data, and to propose viable alternatives, asserting
that DHS should provide a full 60-day period to allow employers time to
analyze the rule, prepare feedback, and adjust operations to reduce
unintended negative impacts.
Response: While DHS acknowledges that E.O.s 12866 and 13563
indicate that agencies generally should provide 60 days for public
comment, DHS believes that the 30-day comment period was sufficient in
this case given: (1) the narrow scope of the rulemaking (i.e.,
addressing the selection process, which is a discrete aspect of the H-
1B program), and (2) the history of rulemaking on this topic. In
addition, DHS has a compelling policy interest, as well as a rulemaking
directive from the President to propose a rule that prioritizes the
admission of high skilled and high paid aliens. 90 FR 46027 (Sept. 19,
2025). Therefore, DHS did not extend the comment period. Given the
narrow scope of this rulemaking, and the fact that DHS had previously
proposed a similar, though not identical, concept of wage-based
selection, DHS believes that 30 days was sufficient time for the public
to determine the impacts of the proposed rule and to prepare and submit
comments. The sufficiency of the 30-day comment period is demonstrated
by the number of high-quality comments received from the public,
including individuals, attorneys, employers, and organizations.
Comment: Some commenters discussed perceived shortcomings of the
NPRM and urged DHS to reconsider the proposal and, as necessary, to
publish a supplemental NPRM addressing these shortcomings and
requesting public comment. Some commenters discussed such perceived
shortcomings and requested that DHS at a minimum delay implementation
of the rule until the following (FY 2028) cap season. Among other
issues, commenters stated that the proposal to tie selection to wage
levels could deter employers from filling hard-to-fill roles or result
in employers pushing work offshore, and that DHS failed to consider
variable compensation factors, provide exemptions for roles tied to
critical infrastructure, or clarify ambiguities regarding situations
involving relocations, multiple office locations, SOC code
classification flexibility, and lottery allocation uncertainty.
Commenters wrote that these issues must be addressed to ensure
fairness, predictability, and transparency in the H-1B process.
Other commenters advised DHS to take into consideration other
factors to prioritize selection, such as age, tenure, performance, and
long-term contribution potential and issue an updated proposal or not
implement changes until the FY 2028 cap season, particularly ``[g]iven
that many
[[Page 60923]]
international workers cannot even access their official wage level data
during this public comment period, proceeding now would be premature.''
Response: DHS declines to delay the implementation of this final
rule until the FY 2028 cap season. DHS has addressed proposed
alternatives to the wage selection methodology elsewhere in this rule
but believes that the weighted methodology strikes a balance between
addressing policy goals of selecting higher-paid and higher-skilled
beneficiaries in a fair manner and creating a methodology that is
administrable in the context of the H-1B registration process, as well
as the H-1B petition process, in the event the registration process is
ever suspended.
With respect to commenters who said they could not access wage-
level data during the comment period, it is unclear what they were
referencing. However, DHS does not believe that a temporary inability
to access wage-level data prevents the commenters from understanding
the weighted selection methodology included in this rule. DHS also
notes that wage-level data changes from year to year based on
adjustments to the OEWS. As discussed elsewhere in this rule, DHS
believes that it has compelling reasons to move expeditiously to
implement the wage-level-based selection for the upcoming FY 2027 cap
season.
2. Regulatory Impact Analysis and Benefits (E.O.s 12866 and 13563)
Comment: A commenter stated that the Regulatory Impact Analysis
(RIA) failed to fully address the impacts of the proposed selection
process on the broader economy. The commenter cited DHS analysis that
showed that 76 percent of H-1B petitioners are small business owners,
and that the proposed regulation would impose significant financial
burdens on a substantial number of small entities, with many facing
cost increases greater than 1-5 percent of their revenue. However, the
commenter claimed that DHS failed to address the fact that small
businesses are the primary drivers of job creation and innovation in
the United States. The commenter further claimed that imposing heavy
costs or pricing small businesses out of the global talent market
undermines national interests by impeding their ability to hire and
innovate. The commenter concluded that, ultimately, these burdens could
lead to higher costs or reduced services for American communities.
An industry group commented that using LCA wage data as a proxy for
registration wage data leaves considerable ambiguity on the projected
impact of the rule, because the LCA is not currently required to be
submitted at registration. The commenter encouraged USCIS to conduct a
comprehensive impact assessment that quantifies potential effects on
critical industries.
One commenter said that DHS has not ``adequately quantified and
considered the distortions of this proposal, including potential
disparate impacts on the economies of different geographic areas.'' A
commenter highlighted the need for DHS to estimate the number of
affected small entities, detail compliance burdens, consider
significant alternatives, and therefore reopen comments to allow
meaningful input from small businesses.
A commenter said that DHS failed to adequately address the negative
impacts on particular employers, such as those in critical
infrastructure sectors. The commenter further stated that DHS
acknowledged a significant reduction in H-1B selections for civil
engineers and architects yet failed to provide a comprehensive economic
assessment of the resulting labor shortages.
Response: DHS acknowledges the importance of small businesses to
the U.S. economy and that the rule may have a significant economic
impact on a substantial number of small entities. DHS notes that these
impacts primarily reflect distributional outcomes inherent in
administering a fixed statutory cap, rather than new compliance costs
created by the rule. Establishing different standards or preferential
treatment for small businesses would be inconsistent with the policy
objective of facilitating the admission of higher-skilled alien workers
for employers and would undermine fairness and program integrity.
Prioritizing registrations by higher wage level equivalencies aligns
with the policy objective to allocate limited H-1B visas to positions
that reflect higher skill and pay and supports innovation and
competitiveness by increasing the chance of selection for higher-paid,
higher-skilled beneficiaries.
DHS recognizes that an LCA is not required at registration and,
therefore, DHS does not have data on the number of registrations by
wage level. For analytical purposes, DHS assumes that the distribution
of wage levels observed in cap-subject petitions (from LCA data)
reasonably approximates the distribution of wage levels in
registrations. To the extent proffered wages exceed the wage levels
indicated on the LCA, the projections presented here should be viewed
as an upper bound of the rule's impact. Because DHS cannot estimate how
many registrants would select a higher wage level than required on the
LCA, DHS uses LCA wage data as a reasonable proxy for registration wage
data. DHS did not receive any alternative data sources from commenters
that would allow for a more reasonable proxy for registration data or
that could appropriately substitute for the petition data used in the
analysis.
LCA wage data are based on the Bureau of Labor Statistics' OEWS
wage survey which is derived from employer compensation data and
produces estimates by occupation and geographic area, reflecting
national patterns and regional labor-market conditions. The LCA wage
levels are adjusted to correspond to progressively higher degrees of
skill, experience, and responsibility within an occupation, and using
them in the selection process helps normalize comparisons across local
labor markets.
DHS declines to establish carve-outs for particular employers or
occupations, and such carve-outs would be impractical within the H-1B
framework. Accordingly, DHS applied a consistent allocation method
while ensuring that all employers--including small entities and those
in essential occupations--retain meaningful opportunities for selection
under the same criteria.
In the Initial Regulatory Flexibility Analysis (IRFA) accompanying
the NPRM, DHS carefully addressed the number of affected small entities
and the estimation methods, the principal North American Industry
Classification System (NAICS) sectors among filers, wage-level
distributions by entity size, the direct economic impacts and counts of
impacted entities, projected reporting, recordkeeping, and other
compliance requirements, and the significant alternatives considered.
Accordingly, DHS has determined that reopening the comment period is
not warranted to obtain additional meaningful input from small
entities.
DHS declines to include an economic assessment on separate
occupation-specific labor shortages. The new weighted selection process
is not designed to project occupational demand, nor does DHS seek to
set occupation-specific priorities, guarantees, or reserved
allocations. The H-1B program is a general specialty occupation visa
category, not a targeted labor shortage program. The weighted selection
process applies uniformly and neutrally across all SOC codes and
industries. DHS's goal is to fairly and efficiently administer the H-1B
cap selection process whenever registrations (or petitions, as
applicable) exceed the annual numerical limitations. It is not DHS's
goal to ensure a certain number
[[Page 60924]]
of workers in specific sectors are selected each year.
DHS appreciates the commenter's concerns regarding the potential
broader economic impacts of the proposed selection process,
particularly on small businesses and their role in job creation and
innovation. However, the RFA does not require agencies to assess
indirect or secondary effects, such as broader economic impacts or
downstream consequences on the economy as a whole. The IRFA and Final
Regulatory Flexibility Analysis (FRFA) prepared for this rule focus on
the direct economic impacts on small entities that are subject to the
proposed selection process. While DHS recognizes the importance of
small businesses to the U.S. economy and innovation, the broader
economic considerations raised by the commenter are not part of the
RFA's requirements.
3. Methodology and Adequacy of the Cost-Benefit Analysis
Some commenters stated that the cost-benefit analysis conducted by
DHS is flawed. Specific issues that were raised are addressed below.
a. Quantifying the Impacts
Comment: A commenter stated that given the availability of multi-
year DHS data on registrations, selections, and petition approvals, the
cost-benefit analysis should have simulated how the proposed weighted
selection process would affect selections by wage level, employer size,
occupation, and geography, as well as to estimate expected changes in
labor market outcomes. Without such quantitative analysis, the
regulatory impact analysis is incomplete.
Response: DHS disagrees with this comment. The RIA quantified
expected impacts by wage level using DOL LCA data, which is the best
available dataset aligned with the rule's use of LCA wage levels.
Because the LCA process generally relies on OEWS prevailing wages that
are specific to occupation and geographic area, the wage-level analysis
inherently reflects occupational and regional labor market differences.
The IRFA accompanying the NPRM also addressed employer size, including
the number of affected small entities, the principal NAICS sectors
among petitioners, and wage-level distributions by entity size.
Accordingly, the RIA provided rigorous quantification where data
permitted and qualitative assessment where measurement constraints
exist.
Comment: A commenter stated that the NPRM did not adequately model
or quantify the broader economic costs of reducing access to high-
skilled foreign talent. The commenter argued that wage level is not the
same as skill, and the NPRM does not convincingly show that the new
process will actually raise skill or pay levels.
Response: DHS disagrees with these comments. The rule does not
alter the eligibility criteria, numerical cap limits, or availability
of H-1B visas, nor does it affect the availability of foreign students'
enrollment and post completion OPT. Accordingly, DHS does not expect
direct effects on the foreign talent pipeline. DHS believes that wages
reflect market valuation of skills and productivity. OEWS wage levels,
derived from employer compensation data, provide occupation- and
geography-specific estimates that capture national and regional
conditions and the higher wage levels are a reasonable proxy for
progressively higher skill.
DHS also disagrees with the comment that the NPRM does not
convincingly show that the new process will actually raise skill or pay
levels. As shown in Table 12 of the NPRM, over a five-year period, the
wage-level distribution of cap-subject petition receipts was
approximately 28 percent (level I), 55 percent (level II), 12% (level
III), and 5% (level IV). Because receipts are concentrated in levels I
and II, a purely random selection would mirror that distribution. The
rule's shift from random to weighted selection is intended to encourage
employers to offer higher wages to higher-skilled H-1B workers to
increase their chance of selection and to reduce incentives to use the
program for relatively lower-paid, lower-skilled workers. As discussed
in the RIA, moving to a weighted selection process is expected to
increase the number and share of selected registrations with wages that
correspond to a level IV, resulting in higher average offered wages
among selected H-1B cap-subject workers.
b. Calculation Error
Comment: A commenter identified what he or she characterized as a
calculation error in DHS's analysis that led the agency to understate
the negative impact on workers at level I and overstate the benefits
for those at levels III and IV. After correcting the error, the
commenter found that individuals at level I would receive 11,518 fewer
H-1B selections, more than DHS's estimate, while those at level IV
would receive 4,426 more selections, and level III and II would also
see increased selections. Another commenter raised the same issue,
stating that there were calculation errors in the NPRM's tables
(specifically Table 13), where the method for estimating the number of
petitions by wage level is unclear or incorrect. The commenter claimed
that this issue affected subsequent estimates of how the rule would
change the distribution of petitions by wage level.
Response: DHS clarifies that the final line in Table 13 is not an
error; it is the simulation result rather than the product of the
number of petitions and the suggested weighted probability. In this
final rule, further explanation is added in the notes to Table 13,
explaining why DHS presented simulation results rather than using a
weighted probability. Since unique beneficiaries can be selected only
once, the selection process is conducted without replacement. However,
multiplying the number of petitions by the selection probability
assumes a with-replacement lottery (e.g., for a wage level IV
registrant, four entries are placed into the lottery. If one of the
beneficiary's registrations is selected, the remaining three
registrations for that beneficiary would still have an equal chance of
selection. However, under the USCIS selection process, the remaining
three registrations would be removed once the first registration was
selected). In practice, selections are made without replacement, so
this calculation overstates the number of selected beneficiaries and
the estimated impact under the proposed rule. Also, calculating the
weighted probability without replacement is intractable to compute
explicitly, so DHS used a Monte Carlo simulation method to estimate
line F in Table 13.
Comment: A commenter said the NPRM relies on petitions (winners)
rather than registrations (all submissions) and fails to align its
analysis with the ``unique beneficiary'' selection process. The
commenter wrote that DHS's calculations in the NPRM were based on FY
2020-FY 2024 lotteries among registrations instead of unique
beneficiaries, even though USCIS shifted to beneficiary-centric
selection for the FY 2025 cap season. The commenter also wrote that the
NPRM incorrectly stated that implementation occurred in FY 2024, which
creates confusion, and the analysis should be conducted under the
current unique beneficiary process. Moreover, the commenter stated that
DHS presumably has the information necessary to merge registrations
with LCA data, but the NPRM did not merge registrations with LCAs to
obtain wage levels for all submissions, and relying only on petition
winners may bias
[[Page 60925]]
estimates and overstate shifts to higher wage levels under weighting.
Response: To clarify the timeline, the beneficiary-centric process
applied to the FY 2025 cap season, and the operational work for that
season occurred during FY 2024. Stating that the beneficiary-centric
process was implemented in FY 2024 refers to when USCIS operationalized
the change, not the cap year label. The timing does not affect the
analytical framework, and an explanatory note was included in Table 3
in the NPRM.
Contrary to the commenter's assumption, DHS does not have the
information necessary to merge registrations with LCA data. LCAs are
not required for registrations. Registrations currently do not include
verified wage level information. Wage levels are verified at the
petition stage via the associated LCA. Also, not every registration can
be cleanly merged with an LCA by employer and position, and a
substantial share of registrations never mature into petitions. For
those reasons, wage distributions derived by merging registrations and
LCAs by employer and position would be noisy and potentially
misleading. DHS acknowledges the limitation of using petition data to
estimate the impact at the registration stage; however, using petition
data ensures wage levels are validated and provides a reliable basis
for analysis.
The beneficiary-centric change reduced the issue of duplicate
registrations for the same individual and substantially reduced any
potential divergence between petition distributions and registration-
level wage mixes for multi-registration beneficiaries. This effort has
anchored the registration process to real registration entries rather
than speculative ones. For the remaining small number of multi-
registration beneficiaries, assigning the lowest wage level across
multiple registrations as proposed and finalized in this rule prevents
gaming and creates a consistent beneficiary-level input for weighting.
Because the lowest wage level will govern selection probability at the
registration stage under the new rule when multiple registrations are
submitted for the same beneficiary or the beneficiary will work in
multiple locations, unique beneficiaries have less incentive to choose
to have multiple registrations submitted on their behalf at different
wage levels. Therefore, DHS's use of petition data to estimate the
wage-level distribution of the registration population is expected to
reasonably reflect the wage-level distribution that will occur under
the new rule.
Comment: A commenter stated that DHS calculations combined both the
regular cap (65,000 visas) and the advanced degree exception pool
(20,000 visas). However, the distribution of beneficiaries across wage
levels is different for these two groups. Specifically, a much higher
proportion of advanced degree beneficiaries are at wage level I (36
percent) compared to other beneficiaries (20 percent). Because advanced
degree holders get two chances in the lottery (first in the advanced
degree pool, then in the regular pool if not selected), they are more
likely to be chosen. Without accounting for this, DHS calculations
overstated how much the new weighted selection process would reduce the
share of low-wage (level I) petitions.
Response: Since the wage level distribution of advanced degree
registrants is slightly different from that of regular cap registrants
and advanced degree registrants have slightly higher concentration in
wage level I compared to regular cap registrants, DHS recognizes
combining the pool of beneficiaries for the regular cap and the
advanced degree exemption would result in a decrease in wage level I
beneficiaries under the rule. However, modeling the proposed weighted
selection as a single pooled draw across all registrations is more
tractable and clarifies the rule's impact with minor loss of accuracy.
Despite the difference, the wage level distribution of advanced
degree registrants and regular cap registrants is similar between
groups: concentrations at wage level I and II are heavy, while wage
level III and IV are lighter. The difference between the two-step and
pooled model is small because only 20,000 out of 85,000 cap slots go
towards the advanced degree exemption, and the wage-level mix of
advanced degree filings is broadly similar to that of the total pool.
See Table 12 of the NPRM and the analysis in this final rule. As a
result, DHS expects the two-step selection process model would affect
the overall wage-level share by only a small amount, while the
weighting itself changes selection rates by much larger margins. The
analysis provided aims to help readers better understand how the rule
may modify the selection process, while recognizing that it cannot
precisely capture all potential impacts.
Comment: A commenter questioned the accuracy of Figures 2 and 3 in
the NPRM, noting they show civil engineers, statisticians, and
architects (except landscape and naval) with no or virtually no
petitions above wage level I, and ``Computer Occupations, All Other''
with no petitions at wage level I, despite other data indicating
otherwise. The commenter noted that USCIS data on H-1B petitions
obtained by Bloomberg merged with the DOL LCA data indicate that in FYs
2021-2024, over 5 percent of petitions with the SOC title ``Computer
Occupations, All Other'' were at wage level I. The commenter stated
that this is inconsistent with the claim in the notice that there were
no petitions in that occupation at wage level I during fiscal years
2020-2024. The commenter also objected to the NPRM's claim that
``Electronics Engineers, Except Computer,'' ``Materials Engineers,''
and ``Engineers, All Other'' would have no petitions at wage level I
under the proposed weighting, citing evidence that these occupations
have had non-trivial wage level I shares under the current process. The
commenter added that the USCIS data on H-1B petitions obtained by
Bloomberg merged with the DOL LCA data indicate that in fiscal years
2021-2024 almost 20 percent of petitions with the SOC title
``Electronics Engineers, Except Computer'' were at wage level I, over
12 percent of petitions with the SOC title ``Materials Engineers'' were
at wage level I, and almost 45 percent of petitions with the SOC title
``Engineers, All Other'' were at wage level I. The commenter stated
that it is unclear why DHS asserted in the NPRM that these occupations
``are not expected to contain any wage level I registrations'' under
the proposed rule.
Response: Figures 2 and 3 show only the top five SOC 6-digit
occupations within SOC major group 15 (Computer and Mathematical
Occupations) and SOC major group 17 (Architecture and Engineering
Occupations). DHS presented only the top five because they cover more
than 70 percent of the distribution and are intended to illustrate that
DHS projected distributional changes in occupations due to the rule.
Both figures have titles that indicate these are the top five SOC 6-
digit codes. The figures illustrate the distributional impacts across
SOC codes and should not be interpreted as indicating that no petitions
exist for occupations or wage levels not shown. Figure 2 shows, for
each wage level, the top five six-digit SOC codes within the Computer
and Mathematical Occupations category. SOC 15-1299 does not appear in
the top five at wage level I, but it does at wage levels II, III, or
IV. The NPRM misstated that there were no petitions at certain wage
levels within specific SOC codes. Such petitions did exist but for
those wage levels, the relevant SOC codes did not
[[Page 60926]]
have enough petitions to appear among the top five SOC codes presented
in the figures. This has been clarified in the final rule. It did not
affect the underlying analysis or conclusions.
c. Distributional Effects and Transfers
Comment: A commenter stated that the distributional effects and
transfers associated with the proposed process were not appropriately
analyzed. The commenter wrote that the proposed weighting favors
higher-wage firms and certain regions or occupations with high
prevailing wages, while disadvantaging small, resource-constrained
employers and lower-wage areas. Additionally, if weighting results in
higher offered wages, it constitutes a transfer from employers to
workers, which the commenter said should be described and, where
possible, quantified across different firm sizes and geographic
locations. Another commenter further claimed that DHS failed to
monetize the economic impact of employers offshoring jobs due to
reduced access to entry-level H-1B workers, as well as the loss of
revenue from declining foreign student enrollment at U.S. institutions.
The commenter wrote that these transfer costs, money and economic
activity moving abroad should have been quantified and balanced against
any supposed benefits of the rule. The commenters concluded that
because DHS omitted this analysis, its cost-benefit assessment is
incomplete and procedurally flawed, undermining the justification for
the proposed rule.
Response: DHS disagrees that distributional effects and transfers
were not appropriately analyzed. The regulatory impact analysis
quantifies transfers and evaluates distributional effects across SOC
codes, and the IRFA presents impacts by firm size. With respect to
geography, wage weighting uses prevailing wages by occupation and area
of intended employment, which normalizes for local labor markets and
mitigates any systematic advantage for higher-cost regions.
DHS disagrees that the economic impact of employers potentially
offshoring jobs and the loss of revenue from potentially declining
foreign student enrollment at U.S. institutions are transfers that an
economic analysis for this rule is able to isolate and monetize.
Decisions to offshore work or changes in foreign student enrollment are
influenced by numerous factors beyond this rule. DHS is unable to
isolate the factors contributing to any potential future decline in
foreign student enrollment from the impacts of this rule. The commenter
did not provide data to support the assertion that this rule would
result in a decline in foreign student enrollment.
DHS is currently unable to effectively model the economic impact of
employers potentially offshoring jobs, as there is no reliable publicly
available data on how many specific jobs are currently offshored due to
unsuccessful H-1B petitions or how that number might change as a result
of this rule. Additionally, the commenter did not provide any data or a
methodology to quantify the economic impact of one company offshoring a
job due to not receiving an H-1B petition in the lottery versus another
company retaining a position in the U.S. after successfully obtaining a
petition. While DHS acknowledges that this may be a business decision
some companies are already making, DHS is unable to determine how the
changes in the weighted selection process under this rule might
influence these decisions in the future.
d. Assessment of Alternatives
Comment: Some commenters stated that the cost-benefit analysis did
not compare the proposed weighted selection process to reasonable
alternatives, such as maintaining a purely random selection, adjusting
weighting by region or occupation, or reserving selections for small
entities. Commenters stated that DHS could have analyzed, for instance,
a beneficiary-centric random selection with enhanced anti-fraud
measures, partial weighting (e.g., with limited multipliers) versus
steep weighting (increasing weighting for higher wage levels),
geographic or occupation-adjusted weighting to avoid penalizing low-
cost areas, and safeguards for small entities, such as floors or set-
asides.
Response: In the NPRM DHS considered reasonable alternatives but
determined that they do not sufficiently meet the rule's policy
objective of facilitating the admission of higher skilled, higher paid
beneficiaries, or would undermine program integrity and
administrability. DHS also carefully reviewed and considered a number
of alternatives suggested by commenters and addressed them in detail in
the Alternatives Considered section of the economic analysis portion of
this preamble. Regarding the alternatives proposed by the commenter,
DHS provides the following responses. Retaining a purely random
selection process (with or without anti-fraud measures) does not
advance the policy objective and leaves incentives for mass
registration at lower wage levels. Anti-fraud tools are complementary
and not substitutes for an allocation mechanism. Partial vs steep
weighting does not meet the objectives of the rule because partial
weighting produces only modest adjustments that leave selection
outcomes largely unchanged from the current selection process, and
steep weighting would function more akin to a carve-out for wage levels
III and IV wages while crowding out wage levels I and II even more
aggressively.\98\ Geographic or occupation adjusted weighting is moot
because the weighted selection process already normalizes by local
labor market via prevailing wage levels for the occupation and area of
intended employment. Adding explicit regional or occupation carve-outs
would be complex, subjective, and more susceptible to gaming. Any
alternative process that provides a different, preferential weighting
scheme especially for small entities would undermine the overall
utility of this rule, which is to generally favor the allocation of H-
1B visas to higher-skilled and higher-paid aliens.
---------------------------------------------------------------------------
\98\ The commenter referenced ``partial weighting'' whereby
minimally acceptable weights might apply to only a portion of
locations or occupations to correct for differences within specific
subgroups, whereas ``steep weighting'' refers to assigning
relatively larger weights to correct for overall differences.
---------------------------------------------------------------------------
e. Costs to Employers
Comment: A commenter stated that the analysis failed to fully
account for the significant costs to employers. According to the
commenter, while DHS acknowledged that the new weighted selection
process would sharply reduce the chances of selecting registrations or
petitions for entry-level positions, it did not adequately analyze the
broader economic consequences for employers. Specifically, the agency
overlooked the increased liability risks associated with artificially
raising wage rates for H-1B workers, which could expose employers to
claims of wage discrimination under Federal law if domestic workers are
not similarly compensated. To avoid such litigation, employers may be
forced to raise wages for all entry-level employees, resulting in
substantial, unaddressed costs, especially for small businesses
operating on fixed contracts and narrow margins. The commenter wrote
that DHS's analysis only considered transfer costs to H-1B workers and
failed to provide a comprehensive cost analysis of these broader
impacts, despite acknowledging its ability to do so. This omission is a
fundamental flaw, as many small employers may be unable to absorb these
costs, jeopardizing their ability to hire skilled workers and fulfill
existing contracts.
[[Page 60927]]
Response: DHS assesses the primary economic effect as
distributional transfers among petitioners due to a reallocation of
selections from wage level I to higher wage levels within a fixed cap.
This leads to an unquantified cost in terms of lost producer surplus
for employers who registered at wage level I and were not selected, and
a corresponding benefit in producer surplus for employers at higher
wage levels whose registrations have higher selection probabilities.
The rule does not require employers to artificially raise wages nor
does it encourage wage discrimination. Businesses are unlikely to offer
higher wages if the employee's skills do not justify the cost. DHS
expects that companies will continue to make business decisions that
align with their operational and financial interests.
The weighted selection process does not mandate any specific wage
level; employers remain legally obligated to pay H-1B workers at least
the prevailing wage or the actual wage, whichever is higher. See INA
sec. 212(n)(1), 8 U.S.C. 1182(n)(1). Differentiated wages are already
required under existing law, if necessary to comply with the prevailing
wage obligation, and this rule does not change those existing
obligations or create additional wage liabilities.
f. Other Comments
Comment: A commenter stated that the economic analysis underpinning
the proposed rule overly relies on outdated studies and does not
account with sufficient care for USCIS' own recent statistics. The
commenter pointed to Figure 1 in the proposed rule and said that it
clearly shows the vast majority of H-1B petitions for positions within
the most relevant SOC codes are filed at wage level I and II, with the
overwhelming majority of computer and mathematical occupations filed at
level II. The commenter added that presenting the wage level selection
effect proposed by DHS by looking only at the two-digit SOC code, which
breaks occupations down only into broad ``major groups,'' is itself
misleading because wage levels are provided for H-1B by the DOL based
on six-digit SOC codes, which breaks the classification down much
further into detailed, specific jobs. The commenter concluded that the
wage level construct does not allow for effective comparison or
ordering among specific, detailed occupations.
Response: DHS disagrees with the comment. The RIA uses the most
current H-1B registration and petition data available and presents
wage-distribution information at both the two-digit SOC ``major group''
level and the six-digit detailed SOC level. Figure 1 in the RIA
provides a program-wide overview of wage distributions across major
occupational groups to orient readers to broad patterns, while Figures
2 and 3 supply the more granular six-digit SOC analysis that the
commenter claims is missing.
Comment: A commenter asserted that the weighted selection process
does not sufficiently reduce the number of level I workers selected.
The commenter showed self-selected examples of wage level distribution
of which level I registrations still have a big share and concluded
DHS's new system is flawed. The commenter proposed much more aggressive
weighing (up to sixteen times for level IV) to shift selections toward
level III and IV. The commenter also recommended visa reservations for
specific occupations, restrictions on remote H-1B work, removal of the
master's cap exemption, and prioritization based on university
rankings.
Response: DHS disagrees with the comment that the rule is
``flawed'' based on the commenter's illustrative tables. The commenter
picked an example where level I registrations are extremely dominant so
even with weighting, the percentage of selected level I registrations
is extremely high such that the commenter concludes that DHS's system
is flawed since it could not redistribute the selected outcome using
the proposed weighting. The weighted selection process does not
guarantee that level I registrations will be eliminated or reduced to
some specific target number but rather increases relative selection
probabilities by corresponding wage level. If level I registrations
massively outnumber registrations at higher wage levels, level I
registrations would still get a substantial selected share. DHS
declines to use much more aggressive weighting. DHS believes that the
extremely steep weighting ratios would create disproportionate
selection distribution, including the exclusion of workers at levels I
and II. DHS does not intend to exclude level I and II workers from
participation in H-1B program. Also, DHS must ensure that the weighted
selection process remains administrable, predictable, and transparent.
Extreme weighting would greatly exacerbate year-to-year variation in
selection outcomes, which create instability and uncertainty for
employers. The commenter mentioned occupation specific visa
reservations, limitations on remote work, and elimination of the
congressionally mandated master's cap exemption, but these fall outside
of the scope of the rule. DHS also declines to adopt the commenter's
recommendation to prioritize registrations based on university's
ranking because specialty occupation is not based on the prestige or
ranking of the academic institution.
Comment: A commenter, citing several studies, wrote that the
proposed rule ignores evidence showing that H-1B workers earn more than
their U.S. counterparts. Meanwhile, the commenter claimed that the
studies cited in the proposed rule fail to adjust for observable
characteristics, such as age and experience when comparing U.S. and
foreign workers and do not provide support for the wage-level weighting
framework. The commenter reasoned that because the proposed rule aims
to increase average salaries of H-1B workers and given that the average
H-1B worker already makes more than similar U.S. workers, it is
significant that the rule fails to show the need to prioritize senior
workers. Like other comments, the commenter also stated that wage level
may not reflect skill and does not allow for cross-occupational
comparisons. Finally, the commenter reasoned that a selection process
based only on wage levels may shift wage distribution leftward as upper
wage level, low wage occupations dominate the selection process.
Response: DHS acknowledges that it is important to control for
observable characteristics when comparing wages of H-1B workers and
U.S. workers. However, DHS relies on OEWS wage levels reported in LCA
filings for H-1B positions, which show that most petitions are
submitted at wage levels I and II. Because OEWS wage levels are
structured so that wage level III represents the median wage for an
occupation and geographic area, the concentration of fillings at level
I and II indicate that H-1B positions are generally offered below the
local median wage. The rule is intended to increase the likelihood that
petitions offering wages at level III and IV will be filed. As shown in
Table 12, the wage-level distribution of cap-subject petition receipts
is approximately 28% (level I), 55% (level II), 12% (level III), and 5%
(level IV). Because receipts are concentrated in lower levels I and II,
a purely random selection would mirror that distribution. The rule's
shift from random to weighted selection is intended to encourage
petitioners to offer wages that reflect higher-skilled specialty
occupation positions, and to reduce incentives to rely on the program
for relatively lower-paid, lower-skilled positions to displace U.S.
workers. As discussed in the RIA, moving to a weighted selection
process is expected to increase the number and share of
[[Page 60928]]
level IV wage selections, resulting in higher average offered wages
among selected H-1B cap-subject workers.
4. Costs
a. Impacts on the Economy, Employers/Registrants/Petitioners, Legal
Services Providers/HR Specialists
Comment: A commenter indicated that the NPRM's estimate of $1.6
billion in ``gains'' from higher H-1B wages is ``illusory,'' as this
number ignores the costs to U.S. workers who have lost jobs or
promotion opportunities to H-1B workers, including ``family costs and
billions in suppressed labor that stifles necessary upskilling.''
Response: DHS disagrees that the NPRM's estimated $1.6 billion in
wage gains is illusory. The estimate reflects the material change in
wages that arises when H-1B cap-subject visas are more likely to be
allocated to higher-paid, higher-skilled H-1B workers under the
weighted selection process. DHS quantified the change in the number of
affected cap-subject workers relative to the baseline and the average
wage differential between higher-wage and lower-wage offers and
multiplied these values to produce the economic impact. This is the
direct impact of the change in the H-1B cap selection process. The
commenter's references to family costs are outside the scope of the
wage gain estimate, although DHS agrees that the rule may not have
captured all the effects of the H-1B program at large on U.S. workers
and their families.
Comment: One commenter noted that the rule would increase
administrative burdens, likely in excess of the $15 million annually
that USCIS estimated at the registration stage. Another commenter said
that requiring detailed documentation of wage levels and SOC codes
across multiple worksites would impose new administrative burdens on
employers, particularly smaller employers.
Response: The commenter provides no empirical support for the
assertion that annual burden will exceed DHS's estimate. As shown in
Table 10, the change will add additional requirements for registrants,
and it will increase the time burden by an estimated 20 minutes. DHS
estimates the additional annual cost for registrants (employers),
whether completed by an HR specialist, in-house lawyer, or outsourced
lawyer, to be approximately $15 million. The change will add questions
to the petition form, increasing the estimated time burden by 15
minutes. DHS estimates the additional annual cost to petitioners
(employers) at approximately $15 million (see Table 18). The total
estimated annual cost to employers will be about $30 million.
Comment: Some commenters stated that the DHS analysis did not
adequately assess the impact of international students and workers'
contribution to the STEM workforce and the resulting impact on the U.S.
economy. A commenter cited economic research that demonstrates high-
skilled immigration, especially those with STEM training, causes large
increases in productivity and economic growth in the United States.
Specifically, the commenter wrote, the increase in U.S. city-level
productivity caused by inflows of foreign STEM workers from 1990 to
2010 is sufficient in magnitude to explain between 30 and 50 percent of
all aggregate productivity growth in the United States during that
period. Moreover, the influx of highly skilled immigrant graduates to
the United States during the 1990s caused a 12 to 21 percent rise in
the annual number of high-technology innovations reflected by annual
patent applications, which in turn raised U.S. GDP per capita by
between 1.4 and 2.4 percent--the equivalent, in today's dollars, of
adding $267-458 billion to the U.S. economy each year. And ``a
substantial reduction in the supply of foreign talent to the U.S.
workforce will have large, negative, and lasting effects on
productivity and economic growth in the United States.''
The commenter further estimated that if the number of foreign STEM
graduates from U.S. universities drops by 10 percent, due to policies
that deter foreign students from enrolling or staying, this would
reduce the total supply of high-skilled STEM workers in the United
States by 1.9 percent. In turn, this reduction in high-skilled foreign
STEM workers would decrease annual Total Factor Productivity growth by
0.024 to 0.048 percentage points. Over a decade, this would make U.S.
GDP 0.24 to 0.48 percent smaller than it otherwise would have been. In
today's terms, that would equal a loss of $72-$145 billion--comparable
to the entire economy of a small U.S. state, such as Delaware or New
Hampshire. The loss of international STEM talent would not just affect
tech hubs like Silicon Valley and Boston, but also innovation clusters
across the country--including the South, Midwest, and smaller cities
that rely on international graduates to compete globally. These regions
could see weakened innovation ecosystems and reduced competitiveness.
Another commenter stated international students are critical to the
U.S. STEM workforce, making up about 20 percent of all STEM graduates
and 44 percent of advanced STEM degree recipients. They contribute
disproportionately to U.S. innovation, filing more patents and starting
more businesses than U.S. natives or other immigrants. Similarly,
although H-1B nonimmigrants are a small share of the total U.S.
workforce, they make up a significant portion of highly educated
workers in technology-intensive industries. The commenter cited
academic research showing that H-1B workers earn more than similar U.S.
workers, fill critical skill shortages, boost productivity, and drive
innovation, helping the United States maintain a competitive edge in
science and technology. According to the commenter, the proposed
process could make it harder for international students to transition
from F-1 to H-1B status, narrowing the early-career talent pipeline.
This would reduce the economic benefits of the H-1B program and
threaten U.S. competitiveness in key sectors. The potential costs of
this reduction could far outweigh any wage gains from the new system.
Finally, a commenter estimated that the present value of the lost
contributions from even a single talented worker over a 30-40-year
career would easily reach millions of dollars in economic value.
Multiplied across 10,000 workers annually, the long-term cost to the
American economy would reach hundreds of billions of dollars.
Response: DHS appreciates the commenters' detailed discussion of
the economic literature on the contributions of international students
and highly skilled foreign workers to U.S. innovation, productivity,
and long-run economic growth. DHS recognizes that highly skilled
foreign STEM graduates and H-1B workers play an important role in the
U.S. economy and that high-skilled migration has been associated with
increased patenting, productivity growth, and expansions in technology-
intensive sectors. DHS also acknowledges that international students
constitute a substantial share of advanced STEM degree recipients and
contribute to U.S. research and development capacity.
However, DHS disagrees that the H-1B weighted selection process
would diminish these contributions or that the rule requires a separate
productivity- or innovation-specific economic impact analysis. The
commenters' discussion largely describes the macroeconomic benefits of
high-skilled immigration in general, not the direct effects of any
particular H-1B selection mechanism. The new weighted selection process
does not reduce the overall number of H-1B cap-subject workers, but it
changes the likely distribution of
[[Page 60929]]
selection across wage levels. The rule does not restrict participation
by employers in STEM fields, innovation hubs, or critical technology
sectors. Accordingly, the assertions that the rule would reduce the
overall foreign talent are speculative and lack empirical support.
b. Impacts on U.S. Workers
Comment: A commenter stated that contrary to DHS claims that H-1B
workers displace U.S. workers, research by the National Foundation for
American Policy demonstrates that H-1B professionals complement U.S.
workers. The commenter wrote that the presence of H-1B workers is
associated with lower unemployment rates among college graduates,
faster earnings growth for U.S. workers in fields with more H-1B
nonimmigrants, and better career alignment for U.S.-born graduates. The
commenter argued that data show that increasing the share of H-1B
workers in an occupation reduces unemployment and boosts wage growth
for U.S. workers, with no evidence of displacement, even among recent
graduates. Thus, restricting H-1B visas could inadvertently harm U.S.
workers by reducing opportunities for collaboration, innovation, and
overall job growth. Another commenter cited research indicating that H-
1B workers are generally complements, not substitutes, for U.S.
workers, and help prevent offshoring of jobs.
Response: DHS appreciates the commenters' reference to research
suggesting that high-skilled foreign workers, including H-1B workers,
complement U.S. workers and may contribute to innovation,
collaboration, and economic growth. However, DHS disagrees with the
commenters that the new weighted selection process would restrict H-1B
visas. The rule is designed to increase the chance of selection for
higher-paid, higher-skilled beneficiaries in years of excess demand for
numerically limited H-1B visas. The rule does not restrict access to
the program, reduce the number of H-1B workers, or respond to general
labor-market effects. Also, the analysis cited by the commenter does
not suggest that a reduction in the share of H-1B workers in an
occupation would increase unemployment or lower wage growth. The
studies the commenter cites generally examine correlations between
higher H-1B presence and positive labor-market indicators. These
studies do not establish causality.
c. Impacts on USCIS
Comment: One commenter predicted that the new rule would result in
a greater burden on USCIS employees to examine and differentiate
between occupational definitions, increasing the time spent reviewing
each petition. Another commenter suggested that verification
requirements of ensuring that the petition wages match registration
wages could increase processing times and increase operational costs
for USCIS, potentially leading to increased fees.
Response: DHS agrees that the new weighted selection process will
require updates to USCIS IT systems for registration and additional
time by USCIS adjudicators to review newly required information during
the adjudication of the petition. DHS notes that if the rule increases
USCIS' costs, then the fee schedule adjustment would be determined at
USCIS' next comprehensive biennial fee review.
5. Benefits
Comment: A commenter supporting the proposed weighted selection
process stated that a benefit of the rule could be increased average
salaries in specialty occupations and that could raise wages for U.S.
workers. The commenter further stated that this rule could benefit U.S.
STEM graduates who are currently facing difficulties finding
employment, explaining that U.S. tech workers have been harmed by the
abuse of the H-1B program to bring in lower-paid workers compared to
U.S. workers.
Response: DHS appreciates comments and analysis submitted by U.S.
tech workers who believe their careers have been harmed by decades of
industries' reliance on the H-1B program to provide foreign entry-level
workers at level I and II wages that are, by definition, below the
median for their occupation. The Department 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 rule
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. DHS believes that this is expected to
increase average salaries among selected H-1B cap-subject workers,
while also better protecting the wages, working conditions, and job
opportunities of U.S. workers.
Comment: A commenter disagreed with the Department's assessment
that increased wages paid to H-1B nonimmigrants would benefit the U.S.
economy. While DHS's analysis concluded that higher wages paid to H-1B
workers could increase overall economic activity and tax revenue, the
commenter stated that U.S. employers are more likely to lose access to
essential skills, leading to delays in productivity and innovation,
disruption of critical services, and even the abandonment or relocation
of projects outside the United States. The commenter wrote that these
consequences impose real costs on the American economy that outweigh
the theoretical benefits that DHS assessed.
Response: DHS disagrees with the commenter. The commenter's
predictions that the rule will cause employers to lose access to
essential skills, abandon projects, or relocate work outside the United
States are speculative. The commenter did not provide any empirical
evidence, such as documented cases, case level data, or any
quantitative or qualitative analyses to support the claim. Without
substantiating data, DHS cannot verify these claimed impacts or
conclude that they would outweigh the benefits identified in the
regulatory impact analysis. The rule does not change the statutory cap,
restrict eligibility for H-1B classification, limit access for any
particular industry, or alter employers' ability to hire.
Comment: A commenter said that estimated benefits (total salary
increases) in Table 15 are unverifiable because H-1B petition data are
not public and urged DHS to release petition and registration data. The
commenter said DHS must provide the underlying data and assumptions so
the public can assess the validity and impact of the proposed rule, and
that the current record does not provide enough information for
meaningful evaluation. The commenter specifically questioned how DHS
converted hourly, weekly, or monthly pay into annual figures and
handled implausibly low or high salaries that may reflect typos.
Pointing to what the commenter described as factual and mathematical
errors, the commenter urged DHS to release the underlying data and
assumptions so the public can assess the validity of its conclusions
and their impact on the H-1B program. The commenter argued that the
notice does not provide enough information for meaningful public
evaluation of the proposed rule.
Response: DHS declines to release individual level raw data because
DHS believes that the rulemaking record provides sufficient detail to
allow meaningful evaluation of the estimates in Table 15 without
disclosing raw data. Average annual salary estimates for H-1B cap-
subject workers were derived from LCA wage data by converting all
[[Page 60930]]
reported pay frequencies to annual amounts using standard factors
(hourly x 2,080; weekly x 52; monthly x 12; annual as reported) and
then computing the mean. To mitigate undue influence from extreme high
values and apparent entry errors, annualized wages were top coded at
$1,000,000.\99\ A review of the lower tail identified no anomalies, so
no bottom-coding or exclusions were applied. DHS conducted quality
checks to ensure internal consistency in the average annual salary for
H-1B cap-subject workers. For these reasons, DHS disagrees that the
estimates are unverifiable and regardless, DHS maintains that the
current record provides adequate information for public review of the
rule's economic impact.
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\99\ Wages above one million were recoded to one million to
mitigate effects of extreme outliers without shaping the original
distribution.
---------------------------------------------------------------------------
6. Transfers
Comment: A commenter stated that the DHS analysis that estimated
$502 million in annual benefits from the proposed rule is misleading.
Rather than representing new economic value, the figure reflects a
transfer of wages from lower-paid (level I) workers to higher-paid
workers. According to the commenter, such a transfer is not a true
benefit but a redistribution of existing resources and therefore DHS
did not demonstrate that the rule creates new value or improved
efficiency.
Response: DHS disagrees with the commenter. As explained in the
RIA, the estimated $502 million first-year effect reflects higher
average wages among cap-subject H-1B workers selected under the
weighted selection process relative to the baseline. The benefit
captures the increased amount of total wages paid after implementation.
The NPRM discusses separately the transfer of wages from lower-paid
workers to higher-paid workers in the RIA. The estimated annual
transfer is $858 million; with the fixed number of caps, shifting
selections from level I to higher wage levels reallocates earnings from
wage level I to higher wage levels. This reallocated portion of the
earnings is captured as transfers, which is the total earnings of wage
level I workers in the baseline.
7. Paperwork Reduction Act (PRA)
Comment: A few commenters expressed support for the proposed
information collection regarding wage levels, stating that these
questions are necessary to ensure that the weighted selection process
will function as intended and that the H-1B program is used to bring in
highly skilled workers. These commenters stated that the burden of
reporting the required information is minimal, especially compared to
the benefits.
Response: DHS agrees that the proposed information collection is
necessary and beneficial, and will finalize the H-1B registration,
petition form, and form instructions as proposed.
Comment: A commenter said that the PRA burden is negligible
compared to the costs that the failures of the H-1B program has imposed
on U.S. workers and the United States economy through lost wages,
displaced jobs, foregone innovation, and human costs. The commenter
further said that the PRA analysis should be expanded to quantify these
costs.
Response: DHS believes that the PRA burden is relatively minor
compared to the benefits of this rule. The new information collection
is necessary and beneficial to enhance the integrity of the H-1B
program and further prevent the harms that the commenter described. DHS
declines to expand the PRA analysis because the PRA analysis is limited
to the burdens associated with the information collection on the Form
I-129, Form I-129 instructions, and the registration tool. The
Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq., requires
federal agencies to minimize paperwork burdens on the public; it does
not require an agency to address costs outside of the information
collection requirement.
Comment: A commenter said that DHS's treatment of information
collection under the PRA is incomplete. Implementing a weighted
selection process for H-1B visas would require new or revised
information to be collected during registration, such as offered wage,
DOL OEWS wage level, SOC code, and worksite location. These
requirements would increase the time and cost for each registration,
especially for employers without in-house immigration counsel,
resulting in hundreds of thousands of additional burden hours and
millions of dollars in annual costs. The commenter asserted that the
proposal does not provide a clear, itemized accounting of these new
burdens or evaluate alternatives to reduce them. The commenter asserts
that DHS must publish a revised 60-day PRA notice with specific burden-
hour and cost estimates, consider less burdensome alternatives, and
obtain Office of Management and Budget (OMB) approval before
implementing the proposed process. Another commenter said that because
DHS has proposed form revisions to implement this rule, employers will
need time not only to review and comment on the proposed revisions, but
also to adopt and ``operationalize'' the revised forms. This commenter
said the introduction of revised forms would be ``extremely
disruptive'' to firms already planning for the FY 2027 cap season.
Response: DHS believes that the data collection requirements
proposed with the NPRM will provide the information needed to implement
the weighted selection process and no additional data elements are
being added through this final rule. With no change to the form or
instructions resulting from this comment, no change in burden needs to
be addressed and updated from the burden estimate included in the NPRM.
DHS also believes that the burden estimate associated with the data
collections was accurately captured in the proposed rule, and no
additional time for comment is necessary. DHS disagrees that the
introduction of the new data collection requirements on the revised
form will be extremely disruptive. DHS believes that the public has
received sufficient notice of the weighted selection process and that
employers will have sufficient time to operationalize the new data
collection requirements on the revised form.
Comment: A commenter opposed the information collection related to
this rule, noting several concerns with the proposed additions to Form
I-129, specifically, the proposed addition of questions 7, 8, 9, 10,
and 11 on the H-1B and H-1B1 Data Collection and Filing Fee Exemption
Supplement. The commenter claimed that these additional questions are
unnecessary, inconsistent with DOL processes, outside of DHS's
authority, represent a significant burden which was not adequately
assessed in the proposed rule, and are beyond the scope of the rule.
The commenter also stated that the information collection changes to
the registration tool fail to provide adequate guidance to ensure
compliance.
Regarding Form I-129, H-1B and H-1B1 Data Collection and Filing Fee
Exemption Supplement, the commenter claimed the additional questions 7
through 11 are unnecessary, as the LCA already provides information
about the SOC code, wage level and area of intended employment. The
commenter claimed that these questions are outside the scope of the
proposed rulemaking, as these questions relate to the prevailing wage
level determination and the specialty occupation determination whereas
the proposed rule is limited to the issue of administering the
registration process for cap-subject petitions. The commenter
additionally
[[Page 60931]]
claimed that these questions are ultra vires because they solicit
information about how a prevailing wage determination was made during
the LCA process, so that USCIS can question whether the appropriate SOC
code and wage level was selected. The commenter concluded that this
information would be used to ``second-guess'' DOL's determinations on
the LCA which ``exceeds USCIS' authority over LCAs because Congress
clearly vested the DOL with exclusive authority over LCAs'' at INA
section 212(n).
Further, the commenter said that DHS failed to adequately assess
the burden of adding these questions to the form, as these questions
are applicable to all H-1B petitioners, not just those that are cap-
subject. The commenter claimed that ``[t]he proposed rule lacks any
assessment of the impact in terms of the total universe of petitions
filed with USCIS that would be subject to and impacted by this
change.''
Additionally, the commenter noted that the questions did not
contain corresponding instructions. The commenter claimed that these
questions are overly broad and confusing, and that the lack of
instructions is a ``fatal error.''
Finally, regarding the registration tool, the commenter stated that
the proposed form does not provide meaningful guidance for situations
in which the OEWS wage information is unavailable for the relevant SOC
code. The commenter requested a link to DOL guidance and ideally more
detailed instructional language.
Response: DHS disagrees with this commenter. Questions 7 through 11
on the supplement form are directly related to this rule. As stated in
the NPRM and in this final rule, the submission of additional
information on the petition form (including wage level information and
the SOC code) allows USCIS to further improve the integrity of the H-1B
cap selection and adjudication processes. Specifically, these new
questions allow USCIS to confirm that: the registrant selected the
correct wage level for the proffered position; the position information
provided in the selected registration is the same as the information
provided in the petition; the position information on the registration
was true and correct and represents a bona fide job offer; and the
filing of a new or amended petition was not part of an attempt to
unfairly increase the odds of selection during the registration (or
petition, if applicable) selection process. While DHS acknowledges that
these questions have greater applicability beyond these purposes, these
questions are nevertheless necessary for USCIS to ensure the integrity
of the weighted selection process and the adjudication process.
These questions do not merely duplicate the LCA process. While the
LCA does provide information about the SOC code, wage level, and area
of intended employment, DHS cannot rely solely on the information
provided on the LCA for registration purposes because the LCA process
differs from the process by which a registrant selects a wage level on
the registration. Specifically, the weighted selection process takes
into account the highest wage level that the proffered salary equals or
exceeds, whereas the LCA wage level is based solely on the requirements
of the position. In instances where the wage level marked on the
registration differs from the LCA wage level, USCIS will rely on these
questions to assess whether the wage level marked on the registration
was appropriate. These questions are necessary for USCIS to determine
whether there was any gaming during the registration process, which is
fully consistent with USCIS's authority to administer the cap selection
process and ensure program integrity.
DHS disagrees with the commenter's assertion that these questions
are outside the scope of DHS' authority or that DOL has ``exclusive
authority over LCAs.'' Contrary to the commenter's assertion, DHS has
broad authority to administer and enforce the INA. See INA sec.
103(a)(1), 8 U.S.C. 1103(a)(1). USCIS may consider LCA-related issues
in exercising its own authority to administer and enforce the INA,
including provisions pertaining to the H-1B program. See ITServe All.,
Inc. v. DHS, 71 F.4th 1028, 1037 (D.C. Cir. 2023) (``[P]olicing
compliance with the terms of an LCA plainly constitutes `administration
and enforcement' of the INA, which section 1103(a)(1) independently
authorizes.'').
DHS also disagrees with the claim that the burden estimate was
inadequate because all petitioners, not just those that are cap-
subject, need to respond to these questions. In the NPRM, DHS estimated
the burden of these additional questions ``for all H-1B petitions, not
just H-1B cap-subject petitions, because these requirements would apply
to any H-1B petitions.'' 90 FR at 46011. DHS believes the proposed
placement of these questions in section 1 of the supplement was
reasonable, as section 1 requires petitioners to provide general
information about the position including the major/primary field of
study, rate of pay, SOC code, and NAICS code. DHS will maintain these
questions in section 1 of the supplement.
Further, DHS declines to add corresponding instructions for these
questions. DHS disagrees that these questions are overly broad and
confusing, and instead, believes these questions are self-explanatory.
These questions generally derive from DOL prevailing wage guidance,
with which most if not all H-1B petitioners should be familiar.\100\
For example, question 7, which asks, ``What level of education is
required for the position?,'' tracks with step 3 of the DOL guidance,
which requires petitioners to compare the education requirement
generally required for an occupation to the education requirement in
the employer's job offer.
---------------------------------------------------------------------------
\100\ While these questions derive from DOL prevailing wage
guidance, DHS emphasizes that these questions serve different
purposes than the LCA.
---------------------------------------------------------------------------
Finally, DHS disagrees that the registration tool fails to provide
adequate guidance. As stated in the NPRM, in the limited instance where
there is no current OEWS prevailing wage information for the proffered
position, the registrant would follow DOL guidance on PWDs to determine
which OEWS wage level to select on the registration. 90 FR 45986, 45993
(Sept. 24, 2025). This sentence included a footnote to the proper
guidance in effect as of the time of publication of the NPRM.\101\ It
is possible that DOL will update their guidance in the future. In such
case, registrants would use any updated version of the Prevailing Wage
Determination guidance published by DOL.
---------------------------------------------------------------------------
\101\ DOL, Employment and Training Administration (ETA),
Prevailing Wage Determination Policy Guidance: Nonagricultural
Immigration Programs (last modified Nov. 2009).
---------------------------------------------------------------------------
8. Other Regulatory Requirements
Comment: A commenter said that the rule contradicts the
deregulation goals of Executive Order 14192, Unleashing Prosperity
Through Deregulation.
Response: DHS disagrees with the commenter's assertion that this
rule contradicts E.O. 14192, as this E.O. expressly states that it does
not include regulations issued with respect to an immigration-related
function of the United States. This final rule pertains to the
administration of the annual numerical allocations for H-1B
nonimmigrants under section 214(g) of the INA, 8 U.S.C. 1184(g), and is
therefore an immigration-related function of the United States.
Comment: A commenter said that DHS should be required to clarify
its Unfunded Mandates Reform Act of 1995
[[Page 60932]]
(UMRA) determination and explain the basis for concluding that private-
sector expenditures do not meet UMRA thresholds because the proposed
weighted selection process would likely increase private-sector
compliance expenditures (as discussed under the PRA) and create
significant distributional effects.
Response: DHS disagrees with the commenter that it should clarify
its UMRA statement in the rule. As discussed in that section of this
rule, neither the proposed nor the final rule constitute a Federal
mandate for purposes of UMRA.\102\ Particularly with respect to the
Federal private sector mandates, this rule imposes no enforceable duty
on the private sector. Rather the H-1B program is voluntary, and this
rule establishes a process for selection where employers may, but are
not required to, offer higher wages to beneficiaries they wish to
sponsor in order to increase their chances of selection. For these
reasons, no further analysis is required.
---------------------------------------------------------------------------
\102\ Under 2 U.S.C. 658(6) and 1502, the term ``Federal
mandate'' means a Federal intergovernmental mandate or a Federal
private sector mandate, as defined in 2 U.S.C. 658(5) and (7).
Specifically, UMRA defines the term ``Federal private sector
mandate'' as any provision in legislation, statute, or regulation
that would impose an enforceable duty upon the private sector
except, among other things, a duty arising from participation in a
voluntary Federal program.
---------------------------------------------------------------------------
H. Out of Scope
Numerous commenters provided comments outside the scope of this
rulemaking (e.g., comments seeking changes in regulations and agency
policies unrelated to the changes proposed in the NPRM). DHS provides a
brief overview of the out of scope comments below. However, DHS is not
providing substantive responses to those comments as they address
policy questions beyond the limited changes proposed and cannot be
resolved through this rulemaking. Comments that DHS considered out of
scope include:
General comments about terminating the H-1B program or
halting immigration in general;
General comments about the qualities of H-1B workers;
General comments calling for comprehensive H-1B reform and
urging DHS to make structural changes, including changes to the
statutory cap;
Comments solely about the $100,000 fee pursuant to the H-
1B Proclamation;
Comments about H-1B renewals, including suggestions for
new fees for renewals;
General concerns about staffing or outsourcing companies,
and requests to ban such companies from the H-1B program permanently or
for a limited period of time;
Comments that would require DOL action, such as increasing
the H-1B prevailing wage and improving DOL audits;
Comments that would require joint DHS and DOL action, such
as enhanced employee screening and deploying a digital platform to aid
recruitment of U.S. workers;
Comments about the L-1 visa program and perceived abuse of
that program;
Comments about the F-1 visa program and OPT/Curricular
Practical Training;
Comments about H-4 nonimmigrant status and employment
authorization for H-4 spouses;
Comments about other immigration programs, including the
J-1, O-1, and H-2 nonimmigrant classifications and the EB-1 immigrant
classification.
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).
1. Summary of Changes From the Notice of Proposed Rulemaking
In this final rule, the estimated 10-year total benefits and
transfers are 17 percent higher than in the NPRM. This change reflects
updated data on the average tenure of cap-subject H-1B workers,
including extensions. The NPRM assumed a 4-year average period of stay
as an H-1B nonimmigrant. The final rule uses a 5-year average based on
observed extensions, including those available beyond the standard six-
year limit. The longer average duration means benefits and transfers
accrue for more time, increasing the 10-year totals by accounting for
an additional year of annual benefits ($502 million) and transfers
($858 million). Figures in Tables 4 and 16-21 have been updated to
reflect the most recent data source and may differ immaterially from
those in the NPRM. Table 1.2 summarizes the changes in estimated
annualized and discounted impacts from the proposed rule to the final
rule.
[[Page 60933]]
[GRAPHIC] [TIFF OMITTED] TR29DE25.005
2. Summary of Changes
As discussed in the preamble, the purpose of this rule 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, will 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 will weight and select each
unique beneficiary (or petition, if registration is suspended) as
follows: a beneficiary (or petition) assigned to wage level IV will be
entered into the selection pool four times, a beneficiary (or petition)
assigned to wage level III will be entered into the selection pool
three times, a beneficiary (or petition) assigned to wage level II will
be entered into the selection pool two times, and a beneficiary (or
petition) assigned to wage level I will 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 will be about $30 million. DHS
estimates the annual net benefits (undiscounted) will be approximately
$472 million in FY2026, $974 million in FY2027, $1,476 million in
FY2028, $1,978 million in FY2029, and $2,480 million in each year from
FY2030 through FY2035. DHS estimates the annualized net benefits of the
rule will be about $1,925 million at 3 percent and $1,854 million at 7
percent. DHS estimates the annual transfers (undiscounted) will be
approximately $858 million in FY2026, $1,717 million in FY2027, $2,575
million in FY2028, $3,434 million in FY2029 and $4,292 million in each
year from FY2030 through FY2035. DHS estimates the annualized transfers
of the rule will be about $3,343 million at 3 percent and $3,222
million at 7 percent.
Table 1.3 provides a detailed summary of estimated quantifiable and
unquantifiable impacts of the final rule.
BILLING CODE 9111-97-P
[[Page 60934]]
[GRAPHIC] [TIFF OMITTED] TR29DE25.006
[[Page 60935]]
[GRAPHIC] [TIFF OMITTED] TR29DE25.007
[[Page 60936]]
[GRAPHIC] [TIFF OMITTED] TR29DE25.008
[[Page 60937]]
In addition to the impacts summarized in Table 1.3, and as required
by OMB Circular A-4, Table 2 presents the prepared accounting statement
showing the costs and benefits that will result in this final
rule.\103\
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\103\ OMB, Circular A-4 (Sept. 17, 2003),
trumpwhitehouse.archives.gov/sites/whitehouse.gov/files/omb/circulars/A4/a-4.pdf.
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[[Page 60938]]
[GRAPHIC] [TIFF OMITTED] TR29DE25.009
[[Page 60939]]
[GRAPHIC] [TIFF OMITTED] TR29DE25.010
BILLING CODE 9111-97-C
3. 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.\104\
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 sec. 214(i)(l), 8 U.S.C. 1184(i)(l).
---------------------------------------------------------------------------
\104\ 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).
---------------------------------------------------------------------------
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. See INA sec.
214(g)(1)(A), 8 U.S.C. 1184(g)(1)(A). 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. See INA secs. 214(g)(5)
and (7), 8 U.S.C. 1184(g)(5) and (7).
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.
See 8 CFR 214.2(h)(8)(iii)(A). USCIS monitors the
[[Page 60940]]
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. See 8 CFR 214.2(h)(8)(iii)(A)(5) and (6). Under
this purely 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. See 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.
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. See 8 CFR
214.2(h)(4)(i)(B). 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. See 20
CFR 655.731 through 735.
This final rule will 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 weighting
and selection generally based on OEWS wage levels for simultaneously
submitted registrations (including registrations submitted within the
same window of time). When applicable, USCIS will weight and select the
registrations for unique beneficiaries (or petitions) received
generally based on the highest OEWS wage level that the beneficiary's
proffered wage would equal or exceed for the relevant SOC code and in
the area(s) of intended employment. Although the allocation of regular
cap (65,000) slots and advanced degree exemption (20,000) slots 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 qualifying master's degree or higher will be
selected.
Table 3 shows the number of H-1B 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.\105\ Table 3 includes the number of unique
beneficiaries because DHS implemented a beneficiary-centric selection
process for H-1B registrations in FY 2024 (for the FY 2025 cap
selection process), 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.
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\105\ 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.
[GRAPHIC] [TIFF OMITTED] TR29DE25.011
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 will be filed with Form G-
28.\106\ Although the advanced degree exemption cap is 20,000, there
are more
[[Page 60941]]
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. See 8 CFR
214.2(h)(8)(iii)(A)(5).
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\106\ Calculation: 76,372 5-Year Average Forms G-28 / 94,900 5-
Year Average Form I-129 petitions = 80 percent.
[GRAPHIC] [TIFF OMITTED] TR29DE25.012
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. DHS does not adjust these estimates to account for the H-1B
Proclamation because, as discussed earlier in this preamble, (1) that
Proclamation applies to only a subset of H-1B petitions, (2) exceptions
to the $100,000 payment may be granted by the Secretary of Homeland
Security to any individual alien, all aliens working for a company, or
all aliens working in an industry; and (3) the H-1B Proclamation will
expire, absent extension, 12 months from its effective date. This rule,
in contrast, will continue indefinitely. DHS acknowledges that the
rule's effects could differ in years when the H-1B Proclamation or a
similar policy is in effect, but for the reasons stated above DHS is
unable to adjust for the potential impacts of the Proclamation.
4. Costs, Transfers, and Benefits of the Final Rule
a. Required Information on the Registration
For purposes of the weighting and selection process in this
rulemaking, a registrant will 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 new 8 CFR 214.2(h)(8)(iii)(A)(4)(i). The
registrant will 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 is less than the corresponding
level I OEWS wage, the registrant will select the ``wage level I'' box
on the registration form. See new 8 CFR 214.2(h)(8)(iii)(A)(4)(i). If
the proffered wage is expressed as a range, the registrant will select
the OEWS wage level that the lowest wage in the range will equal or
exceed. If the H-1B beneficiary will work in multiple locations, or in
multiple positions if the registrant is an agent, the registrant will
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 will list the location corresponding to that lowest
equivalent wage level as the area of intended employment.\107\ Id. The
provision to require a registrant to select the lowest among the
corresponding wage levels if a beneficiary will work in multiple
locations, or in multiple positions if the registrant is an agent, is
meant to prevent gaming of the weighted selection process.\108\
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\107\ Providing the area of intended employment that corresponds
to the lowest equivalent wage level at registration will not
preclude the registrant, if selected and eligible to file a
petition, from listing any additional concurrent work location(s) on
the petition.
\108\ 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.
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DHS recognizes that some occupations do not have current OEWS
prevailing wage information available on DOL's OFLC Wage Search
website.\109\ 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
will follow DOL guidance on PWDs to determine which OEWS wage level to
select on the
[[Page 60942]]
registration.\110\ DHS expects each registrant will 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 will 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.
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\109\ 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 Dec. 8, 2025).
\110\ DOL, ETA, Prevailing Wage Determination Policy Guidance:
Nonagricultural Immigration Programs (last modified Nov. 2009),
https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/NPWHC_Guidance_Revised_11_2009.pdf.
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This change will add additional requirements for registrants. DHS
estimates that this change will 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 change will offer qualitative benefits.
Specifically, submission of additional wage level information and the
SOC code on both an electronic registration and on Form I-129 will
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 H-1B 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.
[GRAPHIC] [TIFF OMITTED] TR29DE25.013
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 will use an HR specialist, an in-house lawyer, or an
outsourced lawyer to prepare an H-1B registration.\111\ 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.\112\ 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.\113\
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\111\ 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.
\112\ See BLS, DOL, 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
modified Apr. 3, 2024).
\113\ See BLS, DOL, Occupational Employment and Wage Statistics,
Occupational Employment and Wages, May 2023, 23-1011 Lawyers,
https://www.bls.gov/oes/2023/may/oes231011.htm (last modified Apr.
3, 2024).
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DHS accounts for worker benefits when estimating the total costs of
compensation by calculating a benefits-to-wage multiplier using the
Bureau of Labor Statistics (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.\114\ 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
[[Page 60943]]
of $53.03 per hour for an HR specialist \115\ and $123.02 per hour for
an in-house lawyer.\116\ 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.\117\
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\114\ 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,
DOL, Economic News Release, Employer Costs for Employee
Compensation--December 2023, Table 1. Employer Costs for Employee
Compensation by ownership [Dec. 2023] (Mar. 13, 2024), https://www.bls.gov/news.release/archives/ecec_03132024.htm. The Employer
Costs for Employee Compensation measures the average cost to
employers for wages and salaries and benefits per employee hour
worked.
\115\ Calculation: $36.57 x 1.45 = $53.03 total wage rate for HR
specialist.
\116\ Calculation: $84.84 x 1.45 = $123.02 total wage rate for
in-house lawyer.
\117\ Calculation: $84.84 x2.5 = $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.
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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.
[GRAPHIC] [TIFF OMITTED] TR29DE25.014
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 will be approximately $9,053,907.
[GRAPHIC] [TIFF OMITTED] TR29DE25.015
Table 8 shows the final estimated time burden will 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 will
[[Page 60944]]
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 will range from $20,777,992
to $35,823,542, with an average of $28,300,767.
[GRAPHIC] [TIFF OMITTED] TR29DE25.016
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 will be approximately
$14,083,353.
[GRAPHIC] [TIFF OMITTED] TR29DE25.017
DHS estimates the total additional annual cost for attorneys and HR
specialists to complete and submit H-1B registrations will 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.
[[Page 60945]]
[GRAPHIC] [TIFF OMITTED] TR29DE25.018
b. 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 final rule will 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.
USCIS will 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 will equal or exceed for
the relevant SOC code in the area(s) of intended employment. The
changes to weight and select registrations will result in the benefit
of increasing the chance that registrations or petitions, as
applicable, will 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
on the 5-year annual average, DHS estimates the annual average receipts
of H-1B cap-subject petitions are 94,900 per year. The 5-year annual
average of non-master's degree receipts is 46,379, and the 5-year
annual average of master's or higher degree receipts is 48,522.
BILLING CODE 9111-97-P
[[Page 60946]]
[GRAPHIC] [TIFF OMITTED] TR29DE25.019
BILLING CODE 9111-97-C
Table 12 presents the percentage of H-1B cap-subject receipts by
wage levels for the estimated 94,900 average annual receipts, based on
corresponding 5-year averages for FY 2020 through FY 2024. For both
non-master's degree and master's or higher degree, wage level II has
the most H-1B receipts followed, in order, by level I, level III, and
level IV. Master's or higher degree petitions have slightly more
receipts in level I and level II as shown by the cumulative percentage
of 86 percent compared to the non-master's degree petitions' cumulative
percentage of 81 percent. Currently, wage level data are only collected
for those beneficiaries who were selected in the registration selection
process and on whose behalf a Form I-129 for H-1B petition was filed
because H-1B petitioners must obtain a certified LCA from DOL that
includes the applicable wage level. An LCA is not a requirement for
registration. Therefore, DHS does not have information on the number of
registrations for each wage level. DHS assumes that the H-1B cap-
subject petition receipts percentages by wage levels from LCA data are
predictive of the H-1B registrations percentages by wage levels.
However, to the extent that proffered wages may exceed the wage levels
indicated on the LCA, the projections in this discussion will represent
the upper bound of the impact of the final rule. DHS does not have a
way to estimate how many registrants will select a higher wage level
than required on the LCA, so DHS uses LCA wage level data as a
reasonable proxy for registration wage level data.
DHS uses the percentages of H-1B cap-subject petition receipts by
wage level to estimate the distribution of registrations for
beneficiaries by wage level. Table 12 shows that the distribution of
current H-1B cap-subject petition receipts, 94,900, by wage level is 28
percent, 55 percent, 12 percent, and 5 percent for wage levels I, II,
III, and IV, respectively. DHS uses the 5-year average of the number of
unique beneficiaries with eligible registrations, 320,711 from Table 3
and applies the distribution of current H-1B cap-subject petition
receipts to estimate the number of unique beneficiaries with eligible
registrations by wage level shown in Table 12.
[[Page 60947]]
[GRAPHIC] [TIFF OMITTED] TR29DE25.020
This final rule will change the way USCIS selects registrations for
H-1B cap-subject petitions (or petitions, if the registration process
is suspended), including those eligible for the advanced degree
exemption. When random selection is required, USCIS will weight and
select unique beneficiaries with properly submitted registrations
generally based on the highest OEWS wage level that the beneficiary's
proffered wage will equal or exceed for the relevant SOC code in the
area(s) of intended employment. A registrant will 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 proffered
wage generally equals or exceeds for the relevant SOC code in the area
of intended employment or otherwise select the appropriate box
according to the form instructions. Registrations for unique
beneficiaries or petitions will 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 will be
entered into the selection pool four times, those assigned wage level
III will be entered into the selection pool three times, those assigned
wage level II will be entered into the selection pool two times, and
those assigned wage level I will be entered into the selection pool one
time. Each unique beneficiary will 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. If a beneficiary has multiple
registrations, the unique beneficiary will be allotted to the lowest
wage level of all registrations submitted on his or her behalf. This
rule will increase the odds of being selected to file H-1B cap-subject
petitions for beneficiaries with proffered wages that correspond to
higher wage levels. DHS examines the impacts of the change in three
different dimensions: probability of being selected, estimated number
of unique beneficiaries selected by wage levels, and economic impact of
the change.
Under the current H-1B selection process, 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. 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. 8 CFR
214.2(h)(8)(iii)(A)(5) through (6). This process allows beneficiaries
who have earned a qualifying U.S. master's degree or higher a greater
chance to be selected. The final rule will maintain this two-stage
selection process to keep a higher chance of beneficiaries with a
qualifying U.S. master's degree or higher of being selected. However,
for the simplicity of comparing the probabilities of being selected in
the current random selection process and in the weighted selection
process, DHS combines the pool of beneficiaries for the regular cap and
the advanced degree exemption and presents the probabilities of being
selected at different wage levels in this analysis.\118\
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\118\ DHS recognizes combining the pool of beneficiaries for the
regular cap and the advanced degree exemption would result in a
decrease in wage level I beneficiaries under the final rule.
However, modeling the weighted selection as a single pooled draw
across all registrations is more tractable and clarifies the rule's
impact with minor loss of accuracy.
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Table 13 compares the probabilities of being selected and
corresponding estimated petition receipts by wage level for the current
random selection process and new weighted selection process. Under the
current random selection process in which every unique beneficiary has
an equal chance of being selected, the probability of being selected to
file an H-1B cap-subject petition for a unique beneficiary is 29.59
percent across all the wage levels. Under the new weighted selection,
DHS
[[Page 60948]]
estimates that the probability of being selected to file a H-1B cap-
subject petition for a unique beneficiary will be 15.29 percent for
level I, 30.58 percent for level II, 45.87 percent for level III, and
61.16 percent for level IV.\119\ The estimated petition receipts for
the current selection process and new selection process are shown in
Table 13. DHS estimates that the percentage change in probability of
being selected to file an H-1B cap-subject petition from the current to
the new process will decrease by 48 percent for level I and will
increase by 3 percent, 55 percent, and 107 percent for level II, level
III, and level IV, respectively. DHS projects, based on the weighted
selection process, that the probability of being selected to file an H-
1B cap-subject petition will be allocated more to levels II, III, and
IV, and less to level I.
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\119\ Calculating weighted probability is complex due to the
involvement of conditional probabilities and distributional
assumptions. For this analysis, DHS uses simple weighted
probabilities to approximate the expected distribution of each wage
level in the sample (see Table 13), comparing probabilities of being
selected. The new weighted probability distribution assumes that
companies will keep their current wage rates when submitting
registrations or petitions. As a result, the analysis may
underestimate the number of registrations or petitions for higher-
wage positions selected in the future if companies offer higher
wages to improve their chance of selection.
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BILLING CODE 9111-97-P
[GRAPHIC] [TIFF OMITTED] TR29DE25.021
BILLING CODE 9111-97-C
Table 14 shows the estimated difference in H-1B cap-subject
petitions by wage level from the current to the new selection process.
DHS applies 85,000, which is the statutory limit on the number of
initial H-1B visas, rather than the historical 5-year annual average of
H-1B cap-subject petition receipts, which is 94,900,\120\ because
approximately 85,000 beneficiaries will be granted initial H-1B status
and paid the applicable required H-1B wage. The estimated number of
annual H-1B cap-subject visas will decrease by 10,099 for level I
petitions, and will increase by 2,373 for level II petitions, 4,496 for
level III petitions, and 3,230 for level IV petitions.
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\120\ Note that the estimated number of H-1B cap-subject
petitions (94,900) exceeds the number of H-1B visas authorized under
the statutory cap (approximately 85,000, after certain deductions
are made for certain numerical set-asides) to allow for the
possibility that some approved workers would either not seek a visa
or admission, would not be issued a visa, or would not be admitted
to the United States.
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[[Page 60949]]
[GRAPHIC] [TIFF OMITTED] TR29DE25.022
All LCAs that are required for H-1B petitions specify SOC codes for
the prospective jobs. The top two SOC major group codes, Computer and
Mathematical Occupations (2-digit SOC major group code 15) and
Architecture and Engineering Occupations (2-digit SOC major group code
17), make up 81 percent of H-1B cap-subject petitions received in FY
2020-FY 2024. The top five SOC major group codes make up 96 percent of
total petitions. Figure 1 breaks out the wage levels for these SOC
codes. The H-1B cap-subject petitions by wage level presented in
previous tables show that most of the petitions are at wage level II.
As seen in Figure 1, this is driven by Computer and Mathematical
Occupations. Petitions for Computer and Mathematical Occupations are
overwhelmingly at wage level II, whereas petitions for Architecture and
Engineering Occupations are greater at wage level I than wage level II.
For the rest of the top five SOC major group codes, the number of H-1B
cap-subject petitions filed at wage level II is greater than level I,
but not as drastically different as Computer and Mathematical
Occupations.
Figure 1. Top Five SOC Codes for FY 2020-FY 2024, by Wage Level
[GRAPHIC] [TIFF OMITTED] TR29DE25.023
[[Page 60950]]
Given that the analysis estimates a 48 percent drop in selections
for wage level I beneficiaries, the distribution of wage levels at the
SOC code will determine the effects of the final rule for occupations
under that SOC code. DHS examines these effects for the top two SOC
major group codes (15 and 17) by breaking out the distribution into 6-
digit SOC codes. The results are summarized in Figure 2 and Figure 3.
Of the 470,023 H-1B cap-subject petitions received in FY 2020-FY
2024, 69 percent (326,000) were associated with SOC major group 15
(Computer and Mathematical Occupations). This major occupation group
contains 460 distinct 6-digit SOC codes, each corresponding to a
different detailed occupation. Examples of detailed occupations include
15-1252 (Software Developers) and 15-2051 (Data Scientists). The top
five detailed occupations make up 71 percent of the 326,000 petitions
received under SOC major group 15. Figure 2 details the counts for
these five detailed occupations, separated by whether they were grouped
at wage level I or at one of the higher wage levels (II, III, IV). As
Figure 2 shows, all detailed occupations under SOC major group 15 have
counts of petitions in wage level I and in higher wage levels except
15-2041 (Statistician).
The final rule does not project a significant increase in the
selection of higher wage level workers in the 15-2041 (Statistician)
occupation.\121\ SOC code 15-1299 (Computer Occupations, All Other) is
also one of the notable exceptions--it is not one of the top five SOC
codes for level I petitions.\122\ SOC code 15-1299 is used to encompass
detailed occupations that do not have a specific code within the broad
group. The final rule will have material effects on these detailed
occupations since registrations under this code will receive a large
boost in probability that they are selected.
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\121\ However, it is possible that such prospective employers
already pay a wage that corresponds to a higher wage level such that
the chance of selection would not be reduced under the final rule,
or that they would choose to pay a wage that corresponds to a higher
wage level in order to increase the chance of selection for workers
in level I positions.
\122\ This does not mean there are no petitions filed at Wage
Level I for SOC 15-1299 (Computer Occupations, All Other). The
figure shows, by wage level, the top five six-digit SOC codes within
the Computer and Mathematical Occupations category. SOC 15-1299 does
not rank in the top five at Wage Level I, but it does at Wage Levels
II, III, or IV.
---------------------------------------------------------------------------
Figure 2. Top Five SOC Code 6-Digit in Computer and Mathematical
Occupations for FY 2020-FY 2024, by Wage Level
[GRAPHIC] [TIFF OMITTED] TR29DE25.024
[[Page 60951]]
After SOC major group code 15, the major group with the next
greatest number of petitioners is SOC major group code 17 (Architecture
and Engineering Occupations). This major group had 52,402 petitions
filed in FY 2020 through FY 2024. Figure 3 details the counts for the
top five detailed occupations within SOC major group code 17 that had
the greatest number of petitions in FY 2020 through FY 2024. As for SOC
major group code 17, many of these occupations have petition counts in
wage level I and in higher wage levels. SOC code 17-2051 (Civil
Engineers) and 17-1011 (Architects, Except Landscape and Naval) are
also a notable exception since all the petitions under this code in the
figure were wage level I. The final rule will reduce the number of
selected H-1B registrations for Civil Engineers and Architects by up to
48 percent, assuming such registrations will be submitted at wage level
I consistent with historical LCA wage level data for Civil
Engineers.\123\ On the other hand, the final rule will likely increase
the number of selected H-1B registrations for SOC code 17-2072
(Electronics Engineers except Computer), SOC code 17-2131 (Materials
Engineers), and 17-2100 (Engineers, All Other) since these detailed
occupations are not top five SOC codes for wage level I registrations,
assuming such registrations will be submitted at higher wage levels
consistent with historical LCA wage level data for these
occupations.\124\
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\123\ To the extent that some of these employers may already be
paying a wage, or offering to pay a wage, that corresponds to a
higher wage level, or may choose to do so, DHS recognizes this
projected reduction represents the upper bound of estimated impact.
However, because DHS does not have a way to estimate how many
registrants would pay a proffered wage that corresponds to a higher
wage level than the wage level required on the LCA, DHS uses the
wage level selected on the LCA as a proxy for the wage level that is
likely to be selected on the registration.
\124\ See the previous footnote.
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Figure 3. Top Five SOC Code 6-Digit in Architecture and Engineering
Occupations for FY 2020-FY 2024, by Wage Level
[GRAPHIC] [TIFF OMITTED] TR29DE25.025
Most of the petitions are filed with the same top 6-digit SOC codes
across wage levels, with several exceptions. The final rule projects
that almost half of the registrations for beneficiaries with a
proffered wage that corresponds to a wage level I typically associated
with entry-level workers will not be selected but registrations for
beneficiaries with a proffered wage that corresponds to a higher wage
level typically associated with more experienced workers will be
selected in the same occupational categories.\125\ However, for certain
occupations that have historically included only petitions for level I
positions, such as Civil Engineers or Architects, except Landscape and
Naval, the final rule does not project a significant increase in the
selection of higher wage level workers in the same occupations.\126\
Instead, the final rule projects increased distribution in occupations
that have historically included petitions for higher wage level
positions, such as Computer Occupations (all other), Electronics
Engineers (except computer), Materials Engineers, or Engineers, All
Other shown in Figure 2 and Figure 3. Therefore, DHS expects that the
final rule will have an impact on the occupational distribution of H-1B
workers.
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\125\ Wage level I, II, III, and IV are defined as entry,
qualified, experienced, and fully competent, respectively. DOL, ETA,
Prevailing Wage Determination Policy Guidance: Nonagricultural
Immigration Programs (last modified Nov. 2009), https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/NPWHC_Guidance_Revised_11_2009.pdf.
\126\ However, it is possible that such prospective employers
already pay a wage that corresponds to a higher wage level such that
the chance of selection would not be reduced under the final rule,
or that they would choose to pay a wage that corresponds to a higher
wage level in order to increase the chance of selection for workers
in level I positions.
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A prospective petitioner (employer) may respond to the final rule
in several ways. An employer could choose to increase the proffered
wage to increase the probability of getting its H-1B registration
selected. If employers choose to increase the proffered wage, or if
employers were already offering a
[[Page 60952]]
salary corresponding to a higher wage level, then this final rule might
result in more registrations (or petitions, if registration is
suspended) with a proffered wage that will correspond to wage level II,
III, or IV, and fewer registrations corresponding to wage level I. It
is also possible that an employer may choose not to make any changes in
response to this rule, especially those employers that were already
offering a salary corresponding to a higher wage level.
Other prospective employers may leave the position vacant if the
alien beneficiary they registered is not selected, because they will
not be able to justify raising the proffered wage to an amount that
corresponds to a higher wage level and that will have improved their
chance of selection. These employers might be unable to fill their
position(s). And other employers might incur additional costs to find
available replacement workers, such as by seeking out and/or training
other workers.\127\
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\127\ DHS has not quantified this cost but notes that in the
analysis accompanying the 2021 final rule, DHS ``assume[d] that an
entity whose H-1B petition is denied will incur an average cost of
$4,398 per worker (in 2019 dollars) . . . to search for and hire a
U.S. worker in place of an H-1B worker during the period of this
economic analysis. If petitioners cannot find suitable replacements
for the labor H-1B cap-subject beneficiaries would have provided if
selected and, ultimately, granted H-1B status, this final rule
primarily will be a cost to these petitioners through lost
productivity and profits.'' 86 FR 1676, 1724 (Jan. 8, 2021).
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The effects of this rulemaking on any given employer will depend in
part on the interaction of a number of complex variables that
constantly are in flux, including national, state, and local labor
market conditions, economic and business factors, the type of
occupations and skills involved, and the substitutability between H-1B
workers and U.S. workers.
DHS acknowledges costs incurred associated with loss of output from
not being able to employ H-1B beneficiaries. Costs incurred associated
with loss of potential output will be discussed as a transfer later in
this section.
Table 15 shows the annual quantified economic impacts of the final
rule. To estimate the economic impact of the final rule, DHS uses the
average annual salary of H-1B cap-subject workers by wage level in FY
2024. In Table 15, the average annual salary for wage level I is
$85,006, for wage level II is $103,071, for wage level III is $131,454,
and for wage level IV is $162,528. The estimated total annual salary
paid to H-1B cap-subject workers under the current selection process in
FY 2024 dollars will be $8,862,595,799. However, under the weighted
selection process, the estimated total annual salary paid to initial H-
1B cap-subject workers will increase because there will be fewer wage
level I workers and more wage level II, III, and IV workers. DHS
estimates that the total annual salaries paid to H-1B workers will
increase by $502,080,486 to $9,364,676,285. The $502 million increase
is the estimated quantifiable economic benefit resulting from the final
rule in the first year.
BILLING CODE 9111-97-P
[[Page 60953]]
[GRAPHIC] [TIFF OMITTED] TR29DE25.026
BILLING CODE 9111-97-C
The maximum initial granted period of stay for H-1B status is three
years, with extensions for up to three years thereafter. An H-1B worker
is generally limited to a six-year period of authorized stay, unless
eligible for an exemption from the general 6-year period of stay
limitation under 8 CFR 214.2(h)(13)(iii)(D) and (E). Based on a DHS
analysis of FY2017 through FY2019 cohort of initial H-1B cap-subject
approvals, the average total validity period, including extensions, is
5.2 years among beneficiaries whose extension basis for classification
is ``Continuation of previously approved employment without change with
the same employer.'' \128\ DHS recognizes that H-1B extensions vary
across petitions and workers. For the purpose of this analysis, DHS
believes it is appropriate to assume the average H-1B cap-subject
worker's duration of H-1B status is 5 years to estimate the benefits
and transfers of the final rule.
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\128\ USCIS, OPQ, CLAIMS3 and ELIS queried 10/2025, TRK #18875.
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The estimated economic benefits in the first year when the new
registration selection process is in effect are approximately $502
million. Assuming H-1B cap-subject workers work an average of five
years in the United States, these benefits will accrue for four
additional years. The benefits in the second year will be about $1,004
million, which includes the initial $502 million in benefits accrued
from new H-1B cap-subject workers with higher wages in the first year
plus an estimated $502 million in benefits accrued from new H-1B cap-
subject workers in the second year. Similarly, the benefits in years 3
and 4 are $1,506 million and $2,008 million, respectively, reflecting
granted H-1B cap-subject workers
[[Page 60954]]
granted in the current year and the prior two years (year 3) and in the
current year and the prior three years (year 4). From year 5 onward,
accrued five-year benefits are $2,510 million each year.
In addition to the $502 million in first-year benefits discussed
previously, the $9.4 billion in first-year H-1B wages resulting from
the final rule also contains a transfer from wage level I workers to
wage level II, III, and IV workers. When a regulation generates a gain
for one group and an equal-dollar-value loss for another group, the
regulation is said to cause a transfer from the latter group to the
former.\129\ When H-1B allocations change from wage level I workers to
higher wage level workers, the benefits of the H-1B classification are
transferred from wage level I workers to higher wage level workers. For
example, if a wage level IV worker whose annual salary is $160,000 is
selected instead of a wage level I worker whose annual salary is
$85,000, then $85,000 of benefits are transferred from the wage level I
worker to the wage level IV worker (the difference of $75,000 is a
benefit to the level IV worker). DHS estimates that transfers from wage
level I workers to other wage level workers will be $858 million in the
first year under the final rule.
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\129\ OMB, Circular A-4 (Sept. 17, 2003),
trumpwhitehouse.archives.gov/sites/whitehouse.gov/files/omb/circulars/A4/a-4.pdf.
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Assuming H-1B cap-subject workers work an average of five years in
H-1B nonimmigrant status, transfers will also accrue for four
additional years. The transfers in the second year will be
approximately $1,717 million and in years 3 and 4 the transfers will be
about $2,575 million and $3,434 million, respectively. In years 5 and
beyond, the transfers will be approximately $4,292 million. These
transfers are the costs incurred associated with loss of output from
not being able to employ the labor of wage level I H-1B workers for the
employers who registered H-1B workers at wage level I. Whereas the
transfers are a benefit to the employers who registered H-1B workers at
higher wage levels because they will expect gains in output by being
able to employ H-1B workers. To the extent that benefits and transfers
are estimated using LCA data, and proffered wages may exceed the wage
levels indicated on the LCA, the projections in this discussion will
represent the upper bound of the impact of the final rule.
There is an unquantifiable transfer from the employers who will
lose an opportunity to employ wage level I H-1B workers to the
employers who will gain an opportunity to employ higher wage level
workers in terms of output produced. When an employer gets into an
economic activity of hiring workers and producing output, they will
expect the output to at least recover the labor cost of hiring workers.
DHS is not able to quantify this producer surplus. According to this
analysis, half of the employers who hire H-1B workers at wage level I
will lose the opportunity to gain the surplus under the final rule.
This gained surplus will be transferred to the employers who will have
an opportunity to hire workers at higher wage levels.
By engaging in a wage-level-based weighting of registrations for
unique beneficiaries, DHS will increase the chances that initial H-1B
visas and status grants will go to higher-skilled or higher-paid
beneficiaries. Facilitating the admission of higher-skilled workers
``will benefit the economy and increase the United States' competitive
edge in attracting the `best and the brightest' in the global labor
market,'' \130\ consistent with the goals of the H-1B program.
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\130\ 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.'').
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c. Required Information on Petition
Unless registration is suspended, a petitioner may 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 8 CFR 214.2(h)(8)(iii)(A)(1). An H-1B cap-
subject petition filed on behalf of a beneficiary will be required to
contain and be supported by the same identifying information and
position information, including SOC code, provided in the selected
registration. See new 8 CFR 214.2(h)(8)(iii)(D)(1). Such petition will
be required 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 as
indicated on the LCA used to support the petition. Id. Petitioners will
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. Id.
This change will add additional questions for petitioners for both
the Form I-129 and the H-1B and H-1B1 Data Collection and Filing Fee
Exemption Supplement (paper and online e-file). DHS estimates that
these additional questions will increase the time burden by 15 minutes
for each petition (0.25 hours) for all H-1B petitions, not just H-1B
cap-subject petitions, because these questions will be on the forms
completed and submitted by all H-1B petitioners. The change will offer
qualitative benefits. Specifically, 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
will allow USCIS to further improve the integrity of the H-1B cap
selection and adjudication processes.
Based on a 5-year annual average, between FY 2020 and FY 2024 from
Table 16, DHS estimates the annual average H-1B petition receipts are
422,759. The 5-year annual average of Form I-129 H-1B receipts with
Form G-28 is 336,023.
[[Page 60955]]
[GRAPHIC] [TIFF OMITTED] TR29DE25.027
DHS does not know the exact number of petitioners who will choose
an in-house or an outsourced lawyer but assumes it may be a 50/50 split
and therefore provides an average. Table 17 shows the additional annual
average cost for a lawyer to complete the petition on behalf of a
petitioner. The additional opportunity cost of time for completing and
submitting an H-1B petition using an attorney or other representative
is estimated to range from $10,334,387 to $17,817,620 with an average
of $14,076,004.
[GRAPHIC] [TIFF OMITTED] TR29DE25.028
To estimate the current remaining opportunity cost of time for an
HR specialist submitting an H-1B petition without a lawyer, DHS applies
the estimated increased public reporting time burden 15 minutes (0.25
hours) to the compensation rate of an HR specialist. Table 18 estimates
the current total annual opportunity cost of time to HR specialists
completing and submitting an H-1B petition will be approximately
$1,149,903.
[[Page 60956]]
[GRAPHIC] [TIFF OMITTED] TR29DE25.029
DHS estimates the additional total annual cost for attorneys and HR
specialists to complete and submit an H-1B petition will be $15,225,907
as shown in Table 19.
[GRAPHIC] [TIFF OMITTED] TR29DE25.030
d. Process Integrity
DHS is revising 8 CFR 214.2(h)(10)(ii) to clarify that a valid
registration must represent a bona fide job offer. The final rule will
also require an H-1B petition filed after registration selection 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. See
new 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). Id.
The final rule will 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 will be equivalent to a lower wage level than that
indicated on the original registration or petition. See new 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 attested to 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 will violate the
requirement that a valid registration represents a bona fide job offer.
As is currently required, the entity submitting a registration or
petition will be required to certify the veracity of the contents of
such submissions. DHS estimates that the final rule could lead to an
increase in the number of denials or revocations of H-1B petitions. DHS
cannot quantify this impact. The changes in process integrity will lead
to improved program integrity for USCIS.
5. Alternatives Considered
DHS considered proposing the methodology from the 2020 H-1B
Selection NPRM (85 FR 69236 (Nov. 2, 2020)) and the 2021 H-1B Selection
Final Rule (86 FR 1676 (Jan. 8, 2021)). Under the 2021 H-1B Selection
Final Rule, USCIS would have ranked and selected registrations
generally based on the highest prevailing wage level that the proffered
wage equals or exceeds for the relevant SOC code and area(s) of
intended employment. The 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.
As discussed earlier in this preamble, 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 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. DHS also considered
various alternatives suggested by commenters, such as weighted
selection by various factors (occupational preferences, industry
preferences, preferences for certain educational degrees, etc.), but
declined to adopt those suggested alternatives for the reasons
previously explained in the comment responses.
[[Page 60957]]
Accordingly, DHS is instead finalizing the weighted selection process
as proposed in the NPRM to 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.
6. Total Quantified Costs, Benefits, and Transfers of Regulatory
Changes
In this section, DHS presents the total annual costs, benefits, and
transfers annualized over a 10-year period of analysis. DHS summarizes
the annual costs, benefits, and transfers (undiscounted) of this final
rule in Table 20. DHS estimates the total annual cost will be
$30,362,120 for FY 2026 through FY 2035. In Table 20, DHS estimates the
total annual benefit will be $502,080,486 in FY2026, $1,004,160,972 in
FY2027, $1,506,241,458 in FY2028, $2,008,321,944 in FY2029, and
$2,510,402,430 in each year from FY2030 through FY2035. DHS estimates
annual transfers (undiscounted) will be $858,470,298 in FY2026,
$1,716,940,595 in FY2027, $2,575,410,893 in FY2028, $3,433,881,191 in
FY2029, and $4,292,351,489 in each year from FY2030 through FY2035. The
net benefit will be calculated by subtracting the cost from the benefit
each year. 10-Year undiscounted total net benefits to the public of
$19,779,598,238 are the total benefits minus total costs.\131\
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\131\ Calculations: $19,779,598,238 Total Net Benefits for 10-
year total (FY2026-FY2035) = $20,083,219,438 Total Benefits-
$303,621,200 Total Costs.
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BILLING CODE 9111-97-P
[GRAPHIC] [TIFF OMITTED] TR29DE25.031
BILLING CODE 9111-97-C
Table 21 illustrates that over a 10-year period of analysis of the
final rule, DHS estimates that annualized net benefits will be
$1,924,995,394 discounted at 3 percent and $1,854,251,990 discounted at
7 percent. Table 21 also shows that over a 10-year period of analysis
of the final rule, that annualized transfers will be $3,343,321,229
discounted at 3 percent and $3,222,362,314 discounted at 7 percent.
[[Page 60958]]
[GRAPHIC] [TIFF OMITTED] TR29DE25.032
7. Costs to the Federal Government
DHS is revising the regulations governing the selection of
registrations for unique beneficiaries submitted by prospective
petitioners (also referred to as registrants) seeking to file H-1B cap-
subject petitions (or the selection of petitions, if the registration
process were suspended). This final rule will require updates to USCIS
IT systems and additional time spent by USCIS to review newly required
information during the adjudication of the petition and maintain
program integrity.
The INA provides for the collection of fees at a level that will
ensure recovery of the full costs of providing adjudication and
naturalization services by DHS, including administrative costs and
services provided without charge to certain applicants and
petitioners.\132\ DHS establishes USCIS fees according to the estimated
cost of adjudication based on its relative adjudication burden and use
of USCIS resources. Fees are established at an amount that is necessary
to recover these assigned costs, such as clerical, officer, and
managerial salaries and benefits, plus an amount to recover unassigned
overhead (e.g., facility rent, IT equipment and systems) and
immigration benefits provided without a fee charge. These costs will be
captured in the fees collected for the benefit request from
petitioners. DHS established the current fee for H-1B registrations and
petitions in its FY2024 fee rule based on empirical cost estimates. DHS
notes that if the final rule increases USCIS' costs, then the fee
schedule adjustment will be determined at USCIS' next comprehensive
biennial fee review.
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\132\ See INA sec. 286(m), 8 U.S.C. 1356(m).
---------------------------------------------------------------------------
B. Regulatory Flexibility Act of 1980
The Regulatory Flexibility Act of 1980 (RFA), Public Law 96-354, as
amended by the Small Business Regulatory Enforcement Fairness Act of
1996, Public Law 104-121, 5 U.S.C. 601 through 612, requires Federal
agencies to consider the potential impact of regulations on small
businesses, small governmental jurisdictions, and small organizations
during the development of their rules. The term ``small entities''
comprises small businesses, not-for-profit organizations that are
independently owned and operated and are not dominant in their fields,
and governmental jurisdictions with populations of less than
50,000.\133\ An ``individual'' is not considered a small entity and
costs to an individual are not considered a small entity impact for RFA
purposes. In addition, the courts have held that the RFA requires an
agency to perform a regulatory flexibility analysis of small entity
impacts only when a rule directly regulates small entities.\134\
Consequently, indirect impacts from a rule on a small entity are not
considered as costs for RFA purposes. The Final Regulatory Flexibility
Analysis for this final rule focuses on the population of employers who
submit H-1B petitions (Form I-129, Petition for a Nonimmigrant Worker)
and H-1B registrations.
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\133\ A small business is defined as any independently owned and
operated business not dominant in its field that qualifies as a
small business per the Small Business Act, 15 U.S.C. 632.
\134\ See U.S. Small Business Administration (SBA), A Guide for
Government Agencies: How to Comply with the Regulatory Flexibility
Act, at 22 (Aug. 2017), https://advocacy.sba.gov/wp-content/uploads/2019/06/How-to-Comply-with-the-RFA.pdf. In Aeronautical Repair
Station Association, Inc. v. FAA, the D.C. Circuit made clear that
an entity is not ``subject to'' a regulation unless the regulation
``imposes responsibilities directly on'' the entity. 494 F.3d 161,
177 (D.C. Cir. 2007); see also Mid-Tex Elec. Coop., Inc. v. FERC,
773 F.2d 327, 342 (D.C. Cir. 1985) (holding that the RFA's
requirements apply only to ``small entities that would be directly
regulated'' by a challenged rule).
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DHS believes that the changes in this final rule will have a
significant economic impact on a substantial number of small entities
that file H-1B cap-subject petitions.
[[Page 60959]]
1. Final Regulatory Flexibility Analysis
a. A Statement of Need for, and Objectives of, This Final Rule
DHS's objectives and legal authority for this final rule are
discussed earlier in the preamble. DHS is amending its regulations
governing H-1B specialty occupation workers. The purpose of the changes
is to better ensure that initial H-1B visas or grants of status are
more likely to be awarded to petitioners seeking to employ higher-paid
and higher-skilled beneficiaries, while not effectively precluding
those at lower wage levels. DHS believes these changes will
disincentivize use of the H-1B program to fill relatively lower paid,
lower skilled positions, better aligning the H-1B program with
congressional intent.
b. A Statement of Significant Issues Raised by the Public Comments in
Response to the Initial Regulatory Flexibility Analysis, a Statement of
Assessment of Any Changes Made in the Proposed Rule as a Result of Such
Comments
Comment: Some commenters stated that the Regulatory Flexibility
Analysis (RFA) conducted by DHS is both flawed and incomplete and makes
it difficult to assess the rule's effects. Some commenters stated that
while DHS acknowledged that a substantial majority of H-1B petitioning
entities are small businesses and that a significant portion would be
economically affected, the analysis does not examine the distributional
effects across industry sectors, geographic regions, and business
models reliant on entry- or mid-level professional workers.
Furthermore, the commenters stated that the analysis did not adequately
quantify the magnitude and scope of these impacts, nor did it present
alternative frameworks as required by statute. Another commenter stated
that the IRFA failed to adequately quantify the impact on small
entities in terms of lost growth opportunities, higher recruitment and
training costs, and increased turnover for small businesses.
Further, another commenter stated that despite acknowledging the
negative impacts for small businesses, DHS did not propose exemptions,
transitional relief, or offsetting mechanisms that 5 U.S.C. 603
requires for small entities. Some commenters recommended what analyses
would be needed to ensure a rigorous cost-benefit analysis. A commenter
stated that the analysis should incorporate empirical data by industry
and firm size, model cumulative costs and opportunity losses, and
explicitly consider flexible approaches that preserve program integrity
while mitigating disproportionate harm to small U.S. employers. Another
commenter stated that DHS should ``prepare a supplemental regulatory
analysis under E.O. 12866 and OMB Circular A-4 that: (a) quantifies the
distributional effects and transfers produced by weighting across firm
sizes, regions, and occupations; (b) rigorously evaluates reasonable
alternatives (including keeping a beneficiary-centric random selection,
partial weighting, geographic/occupation-adjusted weighting, and small-
entity safeguards); and (c) explains why the chosen approach best meets
the stated objectives at least cost.'' Furthermore, the commenter
suggested the need for an IRFA, including a robust analysis of
significant alternatives to minimize small entity impacts. Finally, a
commenter stated that the DHS analysis should have accounted for other
major costs, such as reduced competitiveness for U.S. businesses in
terms of lost market share and innovation, weakened research
institutions, the strategic advantage gained by competitor nations that
attract the excluded talent, inefficiencies from wage inflation,
barriers to entrepreneurship for small businesses, and reduced
innovation and business formation.
Response: DHS relied on the best available empirical data and
analyzed potential effects on small entities and industries through the
RIA and the IRFA. In these analyses, DHS quantified a projected
decrease of 10,099 level I workers under the new selection system and
found that 61 percent of petitions filed by small entities were at wage
level I. DHS estimated the value of lost output using the average wage
of affected workers ($85,006) and discussed additional costs to
identify or train replacement workers (estimated at $4,398).
The RIA quantifies transfers and evaluates distributional effects
across SOC codes, and the IRFA presents impacts by firm size. With
respect to geography, the weighted selection process generally relies
on prevailing wage levels by occupation and 5. area of intended
employment, which normalizes for local labor markets and mitigates any
systematic advantage for higher-cost regions.
DHS considered reasonable alternatives against the rule's
objectives--increasing the chance of selection for higher-paid, higher
skilled aliens while maintaining program integrity and administrative
efficiency--and explained why other options were not adopted (see 5.
Alternatives Considered). Retaining a purely random selection process
(with or without additional anti-fraud measures) does not advance the
policy allocation objective and preserves incentives for mass
registration at lower wage levels. Anti-fraud tools are complementary
to, not substitutes for, an allocation mechanism. Partial weighting
does not materially improve the status quo, while very steep weighting
would overly favor high-wage cases and likely crowd out lower wage
levels entirely.\135\ Geographic- or occupation-adjusted weighting is
unnecessary because the weighted selection process implemented by this
final rule will normalize by local labor markets via prevailing wage
levels for the occupation and area of intended employment. Adding
explicit regional or occupational carveouts would introduce unnecessary
complexity, subjectivity, and greater susceptibility to gaming. Any
alternative that provides preferential weighting--including for small
entities--would undermine the rule's objective to efficiently and
effectively administer a cap selection process that generally favors
allocation to higher-skilled and higher-paid workers across industries,
occupations, and geographic areas.
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\135\ The commenter referenced ``partial weighting'' whereby
minimally acceptable weights might apply to only a portion of
locations or occupations to correct for differences within specific
subgroups, whereas ``steep weighting'' refers to assigning
relatively larger weights to correct for overall differences.
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DHS acknowledges that the rule is likely to have a significant
economic impact on a substantial number of small entities. Under the
new rule, employers or industries with higher share of wage level III
or IV may see improved selection outcomes. In contrast, those with a
higher share of wage level I may experience lower relative selection
outcomes. However, DHS does not believe it would be fair, effective,
and administratively efficient or practical within the H-1B cap
selection process to create carveouts for specific employers,
industries, or occupations. Accordingly, DHS is finalizing the weighted
cap selection process as proposed to ensure that all employers--
including small entities and those in essential occupations--retain
meaningful opportunities for selection.
DHS appreciates the commenter's concerns regarding the potential
negative impact U.S. competitiveness, innovation, research,
entrepreneurship, and business growth on small businesses and their
role in creating barriers to small business entrepreneurship. However,
the RFA
[[Page 60960]]
does not require agencies to assess indirect or secondary effects, such
as broader economic impacts or downstream consequences on the economy
as a whole. The IRFA and Final Regulatory Flexibility Analysis (FRFA)
prepared for this rule focus on the direct economic impacts on small
entities that are subject to the proposed selection process. While DHS
recognizes the importance of small businesses to the U.S. economy and
innovation, the broader economic considerations raised by the commenter
are not part of the RFA's requirements.
Comment: Some commenters expressed concerns associated with the
Regulatory Flexibility Act portion of the proposed rule since the
proposed weighted selection process would significantly disadvantage
small entities. A commenter referenced DHS data that stated that 44
percent of cap-subject petitions filed by small entities fall within
the level I wage category, while only 3 percent are at level IV; in
contrast, larger entities have a lower proportion at level I (25
percent) and a higher proportion at level IV (6 percent). This
disparity means the proposed process has an outsized, negative impact
on small entities and rural regions, reducing their ability to secure
skilled workers through the H-1B program. Another commenter referenced
DHS data that showed that 76 percent of H-1B petitioners are small
business owners, and text in the preamble that stated that ``2,665
small businesses would experience a cost increase that is greater than
5 percent of its revenue[,]'' and that ``5,193 small entities would
experience a cost increase that is greater than 1 percent of its
revenue.'' Another commenter referenced additional data related to the
fact that small entities are much more likely to submit H-1B petitions
at lower wage levels (levels I and II) compared to larger firms; citing
that 61 percent of wage level I petitions in FY2024 came from small
businesses, compared to 47 percent for all cap-subject petitions. Under
the proposed rule, the share of H-1B visas awarded to small businesses
would fall from almost 68 percent in recent years to 65 percent, which
would have a negative impact on small businesses and the
competitiveness of the U.S. economy overall.
Response: DHS acknowledges the commenters' concern regarding
impacts on small entities. However, any alternative process that
provides a different, preferential weighting scheme especially for
small entities would undermine the overall utility of this rule, which
is to generally favor the allocation of H-1B visas to higher-skilled
and higher-paid aliens. This rule will benefit those small entities
that are applying for relatively higher-wage employees, as they will
have a greater chance of their employees being selected compared to the
current random selection process. If a small-sized entity is unable to
pay a beneficiary a wage that corresponds to a higher wage level for a
greater chance of selection, they could try to find a substitute U.S.
worker. DHS selected a nationally consistent approach that advances
program integrity and administrability while ensuring all employers,
including small entities and those in rural regions, retain meaningful
opportunities for selection under the same criteria.
c. The Response of the Agency to Any Comments Filed by the Chief
Counsel for Advocacy of the Small Business Administration in Response
to the Rule, and a Detailed Statement of Any Change Made to the Final
Rule as a Result of the Comments
The Chief Counsel for Advocacy of the Small Business Administration
did not file any comments in response to this rule.
d. A Description of and an Estimate of the Number of Small Entities to
Which This Final Rule Will Apply or an Explanation of Why No Such
Estimate Is Available
For this analysis, DHS used internal data for employers filing H-1B
cap-subject petitions for FY 2024 merged with LCA data.\136\ DHS merged
the internal employer data with the U.S. Small Business Administration
(SBA)'s table of size standards \137\ to identify small entities and
with LCA data \138\ to identify wage levels for the petitions.
---------------------------------------------------------------------------
\136\ USCIS, OPQ, CLAIMS3 and ELIS, queried 3/2025, TRK #17293.
LCA data from DOL. Disclosure Files for LCA Programs (H-1B, H-1B1,
E-3), FY 2024. DOL data downloaded from https://www.dol.gov/agencies/eta/foreign-labor/performance (last visited Nov. 24, 2025).
\137\ SBA, Table of Size Standards (Mar. 17, 2023), https://www.sba.gov/document/support-table-size-standards.
\138\ DOL, Disclosure Files for LCA Programs (H-1B, H-1B1, E-3),
FY 2018--FY 2024. Downloaded from https://www.dol.gov/agencies/eta/foreign-labor/performance (last visited Nov. 24, 2025).
---------------------------------------------------------------------------
To determine whether an entity is small for purposes of the RFA,
DHS first identified the entity's NAICS code and then used SBA
guidelines to classify the revenue or employee count threshold for each
entity. Some entities were classified as small based on their annual
revenue, and some by their number of employees. Approximately 20
percent of petitions were not matched using SBA's table of size
standards. These unmatched employers were considered small entities if
their number of employees was less than 500.
Using FY 2024 internal data on actual filings of H-1B cap-subject
petitions, there were 94,873 petitions filed. DHS recognized 23,452
unique entities and was able to classify 22,453 as either small
entities or not small entities. DHS determined that 76 percent of the
total 22,453 unique entities that filed Form I-129 under the H-1B
classification and cap-subject were small entities. See Table 22. The
estimated annual number of small entities impacted by this final rule
is 17,069.
BILLING CODE 9111-97-P
[GRAPHIC] [TIFF OMITTED] TR29DE25.033
Table 23 shows the Top 10 NAICS Code for small entities filing H-1B
cap-subject petitions for FY2024. The table shows the size standards
for each NAICS code in millions of dollars or by number of employees.
Of the top 10 NAICS codes three are related to the computer industry,
and two are related to manufacturing. The remaining five top industries
are engineering services, offices of lawyers, research and development
in biotechnology,
[[Page 60961]]
administrative management and general management consulting services,
computing infrastructure providers, data processing, web hosting, and
related services.
[GRAPHIC] [TIFF OMITTED] TR29DE25.034
Table 24 shows the number of H-1B cap-subject petitions filed by
small entities for FY 2024 by wage level. Out of 94,873 H-1B petitions
filed, DHS was able to classify the petitioners of 82,204 H-1B
petitions as either small entities or not small entities and identify
the number of petitions filed by such petitioners by wage level, as
well as the percentage of petitions filed at each wage level by small
entities. As shown in Table 24, more small entities filed petitions at
wage levels I and II (61 percent and 47 percent) than at wage levels
III and IV (25 percent and 29 percent).
[GRAPHIC] [TIFF OMITTED] TR29DE25.035
BILLING CODE 9111-97-C
The quantifiable economic impact, represented as a percentage, for
each small entity is the total quantified costs of the changes divided
by the entity's sales revenue. There are two sources of quantifiable
costs. One is the opportunity cost of time to submit H-1B registrations
or to file H-1B petitions, or both. This cost is relatively small, so
it is not considered in this analysis. The other cost is the loss of
output for employers who registered with wage level I but are not
selected due to the change in the selection process by the final rule
and thus are unable to file an H-1B petition. DHS estimates the loss of
output as a transfer, $858,470,298, from the lost wages of wage level I
workers to those higher wage level workers. The loss of output from the
loss of labor is considered as a cost to employers because less output
means less profit. The loss of output from the loss of labor is
estimated using the wage of the lost labor, which is the wage level I
average annual salary, $85,006 (Table 15). Therefore, DHS projects in
the final rule that some small entities who filed H-1B petitions at
wage level I will incur costs of approximately $85,006.\139\ This
assumes, solely for purposes of the RFA, that the employer will be
unable to otherwise fill the position or perform the work. Internal
data show that there
[[Page 60962]]
are 9,428 unique small entities that filed petitions at wage level I in
FY2024.\140\
---------------------------------------------------------------------------
\139\ Small entities that register with wage levels II, III, and
IV would likely benefit because the final rule increases the
probability that their registrations will be selected and that they
may be authorized to employ the alien beneficiary named in their
registration.
\140\ USCIS, OPQ, CLAIMS3 and ELIS, queried 3/2025, TRK #17293.
LCA data from DOL. Disclosure Files for LCA Programs (H-1B, H-1B1,
E-3), FY 2024. DOL data downloaded from https://www.dol.gov/agencies/eta/foreign-labor/performance (last visited Nov. 24, 2025).
---------------------------------------------------------------------------
DHS divides $85,006 by the revenue for each entity then finds that
5,193 small entities will experience a cost increase that is greater
than 1 percent of its revenue and 2,665 will experience a cost increase
that is greater than 5 percent of its revenue.\141\ DHS considers an
impact greater than 1 percent of a small entity's revenue as
significant for purposes of the RFA. As such, DHS estimates that the
final rule will result in a significant impact on 5,193 small entities,
or 30 percent of the 17,069 small entities affected by the final rule.
DHS considers 30 percent as a substantial number. This final rule will
also benefit small entities that are applying for higher-earning
employees as they will have a greater chance of their employees being
selected compared to the current purely random selection process.
---------------------------------------------------------------------------
\141\ Id.
---------------------------------------------------------------------------
Based on this analysis, DHS believes that the changes in this final
rule will have a significant economic impact on a substantial number of
small entities that file H-1B cap-subject petitions.
e. A Description of the Projected Reporting, Recordkeeping, and Other
Compliance Requirements of the Final Rule, Including an Estimate of the
Classes of Small Entities That Will Be Subject to the Requirement and
the Types of Professional Skills Necessary for Preparation of the
Report or Record
The selection process in the final rule will result in an
additional burden to employers reporting additional information,
including a beneficiary's appropriate wage level, SOC code, and area of
intended employment in the registration system, on the Form I-129
petition, and on the H-1B and H-1B1 Data Collection and Filing Fee
Exemption Supplement to Form I-129. DHS estimates the increased burden
to submit an H-1B registration is 20 minutes and the increased burden
to file the Form I-129, Petition for Nonimmigrant Worker, to request H-
1B classification is 15 minutes. DHS believes this will be completed by
an HR specialist, in-house lawyer, or outsourced lawyer.
f. Description of the Steps the Agency Has Taken To Minimize the
Significant Economic Impact on Small Entities Consistent With the
Stated Objectives of the Applicable Statues, Including a Statement of
Factual, Policy, and Legal Reasons for Selecting the Alternative
Adopted in the Final Rule and Why Each One of the Other Significant
Alternatives to the Rule Considered by the Agency Which Affect the
Impact on Small Entities Was Rejected
DHS considered alternative solutions that are described in further
detail in the section on Executive Orders 12866 and 13563 earlier in
the preamble of this rule, as well as in the comment summaries and
responses. While the collection of additional information and the
change to a weighted selection process will impose a burden on some
prospective small employers, USCIS found no other alternatives that
achieved the stated objectives with less burden to small entities.
Under the 2021 H-1B Selection Final Rule, USCIS would have ranked
and selected registrations generally based on the highest prevailing
wage level. The 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.
Compared to this final rule, DHS believes that the 2021 H-1B Selection
Final Rule approach would have an even greater negative effect on small
businesses hiring lower wage level or entry level workers.
As stated earlier in this analysis, this final rule will also
benefit small entities that are applying for higher-earning employees
who will be weighted at level III or level IV as they will have a
greater chance of their employees being selected compared to the
current random selection process. Thus, it is possible that any
alternative that imposes a lower burden on small entities generally
could also reduce those employers' chance of selection for higher wage
level workers. For example, if USCIS were to artificially elevate the
corresponding wage level for small businesses compared to other
businesses, such an alternative could actually decrease the likelihood
that those small entities' registrations with a level IV wage will be
selected, relative to the selection process under the final rule, if
other small businesses are artificially elevated to level IV
equivalency based on factors other than the corresponding wage amount.
Furthermore, given that 76 percent of unique cap-subject H-1B filers
are small entities, and 47 percent of H-1B cap petitions in FY 2024
were filed by small entities, any alternative process that provides a
different, preferential weighting scheme especially for small entities
would undermine the overall utility of this final rule, which is to
generally favor the allocation of H-1B visas to higher-skilled and
higher-paid aliens.
C. Congressional Review Act
The Office of Information and Regulatory Affairs has determined
that this final rule is a major rule, as defined in 5 U.S.C. 804, also
known as the ``Congressional Review Act'' (CRA), as enacted in section
251 of the Small Business Regulatory Enforcement Fairness Act of 1996,
Public Law 104-121, sec. 251, 110 Stat. 868, 873, and codified at 5
U.S.C. 801 et seq. Therefore, the rule requires at least a 60-day
delayed effective date. DHS has complied with the CRA's reporting
requirements and has sent this final rule to Congress and to the
Comptroller General as required by 5 U.S.C. 801(a)(1).
D. Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (UMRA) is intended, among
other things, to curb the practice of imposing unfunded Federal
mandates on State, local, and Tribal governments. Title II of UMRA
requires each Federal agency to prepare a written statement assessing
the effects of any Federal mandate in a final rule that includes any
Federal mandate that may result in a $100 million or more expenditure
(adjusted annually for inflation) in any one year by State, local, and
Tribal governments, in the aggregate, or by the private sector. See 2
U.S.C. 1532(a).
The inflation adjusted value of $100 million in 1995 is
approximately $206 million in 2024 based on the Consumer Price Index
for All Urban Consumers (CPI-U).\142\ This final rule does not
[[Page 60963]]
contain a Federal mandate as the term is defined under UMRA.\143\ The
requirements of title II of UMRA, therefore, do not apply, and DHS has
not prepared a statement under UMRA.
---------------------------------------------------------------------------
\142\ See DOL, BLS, Historical Consumer Price Index for All
Urban Consumers (CPI-U): U.S. city average, all items, by month,
https://www.bls.gov/cpi/tables/supplemental-files/home.htm,
Historical CPI-U, September 2025 (XLSX)(database) (last visited
Dec.11, 2025). Calculation of inflation percentage: (1) Calculate
the average monthly CPI-U for the reference year (1995) and the
current year (2024); (2) Subtract reference year CPI-U from current
year CPI-U; (3) Divide the difference of the reference year CPI-U
and current year CPI-U by the reference year CPI-U; (4) Multiply by
100 = [(Average monthly CPI-U for 2024 - Average monthly CPI-U for
1995) / (Average monthly CPI-U for 1995)] x 100 = [(313.689 -
152.383) / 152.383] = (161.306 / 152.383) = 1.059 x 100 = 105.86
percent = 106 percent (rounded).
Calculation of inflation-adjusted value: Convert 106% inflation
percentage to an inflation factor = 1 + 106/100 = 2.06. $100 million
in 1995 dollars x 2.06 = $206 million in 2024 dollars.
\143\ The term ``Federal mandate'' means a Federal
intergovernmental mandate or a Federal private sector mandate. See 2
U.S.C. 1502(1) and 658(6).
---------------------------------------------------------------------------
E. Executive Order 13132 (Federalism)
This final rule will not have substantial direct effects on the
States, on the relationship between the National Government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with section 6
of Executive Order 13132, it is determined that this final rule does
not have sufficient federalism implications to warrant the preparation
of a federalism summary impact statement.
F. Executive Order 12988 (Civil Justice Reform)
This final rule was drafted and reviewed in accordance with E.O.
12988, Civil Justice Reform. This final rule was written to provide a
clear legal standard for affected conduct and was carefully reviewed to
eliminate drafting errors and ambiguities, so as to minimize litigation
and undue burden on the Federal court system. DHS has determined that
this final rule meets the applicable standards provided in section 3 of
E.O. 12988.
G. Executive Order 13175 (Consultation and Coordination With Indian
Tribal Governments)
This final rule does not have ``tribal implications'' because it
will not have substantial direct effects on one or more Indian Tribes,
on the relationship between the Federal Government and Indian Tribes,
or on the distribution of power and responsibilities between the
Federal Government and Indian Tribes. Accordingly, E.O. 13175,
Consultation and Coordination with Indian Tribal Governments, requires
no further agency action or analysis.
H. National Environmental Policy Act
DHS and its components analyze regulatory actions to determine
whether the National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et
seq., applies to them and, if so, what degree of analysis is required.
DHS Directive 023-01 Rev. 01 ``Implementing the National Environmental
Policy Act'' (Dir. 023-01 Rev. 01) and Instruction Manual 023-01-001-01
Rev. 01 (Instruction Manual) \144\ establish the policies and
procedures that DHS and its components use to comply with NEPA.
---------------------------------------------------------------------------
\144\ The Instruction Manual, which contains DHS's procedures
for implementing NEPA, was issued on November 6, 2014, and is
available at https://www.dhs.gov/ocrso/eed/epb/nepa (last modified
July 29, 2025).
---------------------------------------------------------------------------
NEPA allows Federal agencies to establish, in their NEPA
implementing procedures, categories of actions (``categorical
exclusions'') that experience has shown do not, individually or
cumulatively, have a significant effect on the human environment and,
therefore, do not require an environmental assessment or environmental
impact statement. See 42 U.S.C. 4336(a)(2), 4336e(1). The Instruction
Manual, Appendix A lists the DHS Categorical Exclusions.\145\
---------------------------------------------------------------------------
\145\ See Appendix A, Table 1.
---------------------------------------------------------------------------
Under DHS NEPA implementing procedures, for an action to be
categorically excluded, it must satisfy each of the following three
conditions: (1) the entire action clearly fits within one or more of
the categorical exclusions; (2) the action is not a piece of a larger
action; and (3) no extraordinary circumstances exist that create the
potential for a significant environmental effect.\146\
---------------------------------------------------------------------------
\146\ Instruction Manual 023-01 at V.B(2)(a)-(c).
---------------------------------------------------------------------------
This final rule is limited to amending DHS's existing regulations
at 8 CFR 214.2(h)(8), (10), and (11) to provide for the selection of
unique beneficiaries toward the H-1B annual numerical limitations and
the advanced degree exemption in a weighted manner based on the wage
level listed in each H-1B registration that corresponds to the
prospective petitioner's proffered wage. DHS has reviewed this final
rule and finds that no significant impact on the environment, or any
change in environmental effect, will result from the amendments being
promulgated in this final rule.
Accordingly, DHS finds that the promulgation of this final rule's
amendments to current regulations clearly fits within categorical
exclusion A3 established in DHS's NEPA implementing procedures as an
administrative change with no change in environmental effect, is not
part of a larger Federal action, and does not present extraordinary
circumstances that create the potential for a significant environmental
effect.
I. Paperwork Reduction Act of 1995
Under the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501-12,
DHS must submit to OMB, for review and approval, any reporting
requirements inherent in a rule unless they are exempt. In accordance
with the PRA, the information collection notice was published in the
Federal Register to obtain comments regarding the proposed edits to the
information collection instruments.
H-1B Registration Tool (OMB Control No. 1615-0144)
(1) Type of Information Collection: Revision of a Currently
Approved Collection.
(2) Title of the Form/Collection: H-1B Registration Tool.
(3) Agency form number, if any, and the applicable component of DHS
sponsoring the collection: OMB-64; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Business or other for-profit. USCIS
uses the data collected on this form to determine which employers will
be informed that they may submit a USCIS Form I-129, Petition for
Nonimmigrant Worker, for H-1B classification.
(5) An estimate of the total number of respondents and the amount
of time estimated for an average respondent to respond: The estimated
total number of respondents for the information collection H-1B
Registration Tool (Businesses) is 20,950 and the estimated hour burden
per response is 0.9333 hours.\147\ The estimated total number of
respondents for the information collection H-1B Registration Tool
(Attorneys) is 19,339 and the estimated hour burden per response is
0.9333 hours.
---------------------------------------------------------------------------
\147\ This rule is not expected to impact the number of
respondents. For PRA purposes, DHS uses the currently approved
volume for OMB Control number 1615-0144 of 20,950. See https://www.reginfo.gov/public/do/PRAOMBHistory?ombControlNumber=1615-0144
(last visited Dec. 8, 2025).
---------------------------------------------------------------------------
(6) An estimate of the total public burden (in hours) associated
with the collection: The total estimated annual hour burden associated
with this collection of information is 331,872 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $0.
Form I-129 (OMB Control No. 1615-0009)
(1) Type of Information Collection: Revision of a Currently
Approved Collection.
(2) Title of the Form/Collection: Petition for Nonimmigrant Worker.
(3) Agency form number, if any, and the applicable component of DHS
sponsoring the collection: I-129, E-1/E-2 Classification Supplement,
Trade
[[Page 60964]]
Agreement Supplement, H Classification Supplement, H-1B and H-1B1 Data
Collection and Filing Fee Exemption Supplement, L Classification
Supplement, O and P Classification Supplement, Q-1 Classification
Supplement, and R-1 Classification Supplement; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Business or other for-profit. USCIS
uses Form I-129 and accompanying supplements to determine whether the
petitioner and beneficiary(ies) is (are) eligible for the nonimmigrant
classification. A U.S. employer, or agent in some instances, may file a
petition for nonimmigrant worker to employ foreign nationals under the
following nonimmigrant classifications: H-1B, H-2A, H-2B, H-3, L-1, O-
1, O-2, P-1, P-2, P-3, P-1S, P-2S, P-3S, Q-1, or R-1 nonimmigrant
worker. The collection of this information is also required from a U.S.
employer on a petition for an extension of stay or change of status for
E-1, E-2, E-3, Free Trade H-1B1 Chile/Singapore nonimmigrants and TN
(United States-Mexico-Canada Agreement workers) who are in the United
States.
(5) An estimate of the total number of respondents and the amount
of time estimated for an average respondent to respond: The estimated
total number of respondents for the information collection I-129 (paper
filing) is 527,606 and the estimated hour burden per response is 2.55
hours. The estimated total number of respondents for the information
collection I-129 (online electronic filing) is 45,000 and the estimated
hour burden per response is 2.333 hours. The estimated total number of
respondents for the information collection E-1/E-1 Classification
Supplement is 12,050 and the estimated hour burden per response is 0.67
hours. The estimated total number of respondents for the information
collection Trade Agreement Supplement (paper filing) is 10,945 and the
estimated hour burden per response is 0.67 hours. The estimated total
number of respondents for the information collection Trade Agreement
Supplement (online electronic filing) is 2,000 and the estimated hour
burden per response is 0.5833 hours. The estimated total number of
respondents for the information collection H Classification (paper
filing) is 426,983 and the estimated hour burden per response is 2.3
hours. The estimated total number of respondents for the information
collection H Classification (online electronic filing) is 45,000 and
the estimated hour burden per response is 2 hours. The estimated total
number of respondents for the information collection H-1B and H-1B1
Data Collection and Filing Fee Exemption Supplement (paper filing) is
353,936 and the estimated hour burden per response is 1.25 hours. The
estimated total number of respondents for the information collection H-
1B and H-1B1 Data Collection and Filing Fee Exemption Supplement
(online electronic filing) is 45,000 and the estimated hour burden per
response is 1 hour. The estimated total number of respondents for the
information collection L Classification Supplement is 40,358 and the
estimated hour burden per response is 1.34 hours. The estimated total
number of respondents for the information collection O and P
Classification Supplement is 28,434 and the estimated hour burden per
response is 1 hour. The estimated total number of respondents for the
information collection Q-1 Classification Supplement is 54 and the
estimated hour burden per response is 0.34 hours. The estimated total
number of respondents for the information collection R-1 Classification
Supplement is 6,782 and the estimated hour burden per response is 2.34
hours.
(6) An estimate of the total public burden (in hours) associated
with the collection: The total estimated annual hour burden associated
with this collection of information is 3,124,836 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $149,694,919.
List of Subjects in 8 CFR Part 214
Administrative practice and procedure, Aliens, Cultural exchange
program, Employment, Foreign officials, Health professionals, Reporting
and recordkeeping requirements, Students.
Accordingly, DHS amends chapter I of title 8 of the Code of Federal
Regulations as follows:
PART 214--NONIMMIGRANT CLASSES
0
1. The authority citation for part 214 continues to read as follows:
Authority: 6 U.S.C. 202, 236; 8 U.S.C. 1101, 1102, 1103, 1182,
1184, 1186a, 1187, 1188, 1221, 1281, 1282, 1301-1305, 1357, and
1372; sec. 643, Pub. L. 104-208, 110 Stat. 3009-708; Pub. L. 106-
386, 114 Stat. 1477-1480; section 141 of the Compacts of Free
Association with the Federated States of Micronesia and the Republic
of the Marshall Islands, and with the Government of Palau, 48 U.S.C.
1901 note and 1931 note, respectively; 48 U.S.C. 1806; 8 CFR part 2;
Pub. L. 115-218, 132 Stat. 1547 (48 U.S.C. 1806).
0
2. Amend Sec. 214.2 by:
0
a. Revising paragraphs (h)(8)(iii)(A)(3), (h)(8)(iii)(A)(4),
(h)(8)(iii)(A)(5)(i), (h)(8)(iii)(A)(5)(ii), (h)(8)(iii)(A)(6)(i),
(h)(8)(iii)(A)(6)(ii), (h)(8)(iii)(A)(7), (h)(8)(iii)(D)(1),
(h)(8)(iv)(B) and (h)(10)(ii);
0
b. Redesignating paragraphs (h)(10)(iii) and (h)(10)(iv) as paragraphs
(h)(10)(iv) and (h)(10)(v);
0
c. Adding new paragraph (h)(10)(iii);
0
d. Revising paragraphs (h)(11)(iii)(A)(6) and (h)(11)(iii)(A)(7); and
0
e. Adding paragraph (h)(11)(iii)(A)(8).
The revisions and additions read as follows:
Sec. 214.2 Special requirements for admission, extension, and
maintenance of status.
* * * * *
(h) * * *
(8) * * *
(iii) * * *
(A) * * *
(3) Initial registration period. The annual initial registration
period will last a minimum of 14 calendar days and will 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, consistent with
paragraph (h)(2)(i)(J) of this section. USCIS will announce the start
and end dates of the initial registration period on the USCIS website
at www.uscis.gov for each fiscal year. USCIS will announce the start of
the initial registration period at least 30 calendar days in advance of
such date.
(4) Selecting registrations based on unique beneficiaries.
Registrations will be counted based on the number of unique
beneficiaries who are registered. The selection will be made via
computer-generated selection based on unique beneficiary. Each unique
beneficiary will 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 as provided in paragraph (h)(8)(iii)(A)(4)(ii) of this
section. USCIS will separately notify each registrant that its
registration on behalf of a beneficiary has been selected, and that the
petitioner(s) may file a petition(s) for that beneficiary. A petitioner
may file an H-1B cap-subject petition on behalf of a registered
beneficiary only after the petitioner's properly submitted registration
for that beneficiary has been selected for that fiscal year.
(i) Required information. On the registration, the registrant must
select
[[Page 60965]]
the highest Occupational Employment and Wage Statistics (OEWS) wage
level that the beneficiary's proffered wage equals or exceeds for the
relevant Standard Occupational Classification (SOC) code in the area(s)
of intended employment. 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 registrant must select ``wage level I.'' If
the beneficiary will work in multiple locations, or in multiple
positions if the registrant is an agent, the registrant must select the
lowest corresponding OEWS wage level that the beneficiary's proffered
wage will equal or exceed. If the beneficiary's proffered wage is
expressed as a range, the registrant must select the OEWS wage level
that the lowest wage in the range will equal or exceed. Where there is
no current OEWS prevailing wage information for the beneficiary's
proffered position, the registrant must select the OEWS wage level that
corresponds to the requirements of the beneficiary's proffered position
using the Department of Labor's prevailing wage guidance. The
registrant must also provide the SOC code of the proffered position,
the area of intended employment that served as the basis of the wage
level selected on the registration, the beneficiary's valid passport or
travel document information, and all other requested information, as
well as make the necessary certifications, as specified on the
registration form and instructions. Each beneficiary must only be
registered under one valid passport or travel document, and if or when
the beneficiary is abroad, the passport information or travel document
information must correspond to the passport or travel document the
beneficiary intends to use to enter the United States.
(ii) Weighted selection. If a random selection is necessary, USCIS
will assign each unique beneficiary to the lowest OEWS wage level among
all registrations submitted on the beneficiary's behalf and will enter
each unique beneficiary into the selection pool in a weighted manner as
follows: a beneficiary assigned wage level IV will be entered into the
selection pool four times, a beneficiary assigned wage level III will
be entered into the selection pool three times, a beneficiary assigned
wage level II will be entered into the selection pool two times, and a
beneficiary assigned wage level I will be entered into the selection
pool one time.
(5) * * *
(i) Fewer registrations than needed to meet the H-1B regular cap.
At the end of the annual initial registration period, if USCIS
determines that there are fewer unique beneficiaries on whose behalf
registrations were properly submitted than needed to meet the H-1B
regular cap, USCIS will notify all petitioners that have properly
registered that their registrations have been selected. USCIS will keep
the registration period open beyond the initial registration period,
until it determines that it has received a sufficient number of
registrations for unique beneficiaries to meet the H-1B regular cap.
Once USCIS determines there is a sufficient number of properly
registered unique beneficiaries to meet the H-1B regular cap, USCIS
will no longer accept registrations for petitions subject to the H-1B
regular cap under section 214(g)(1)(A) of the Act. USCIS will monitor
the number of unique beneficiaries with properly submitted
registrations and will notify the public of the date that USCIS has
received the necessary number of registrations for unique beneficiaries
(the ``final registration date''). The day the public is notified will
not control the applicable final registration date. If USCIS has
received more registrations for unique beneficiaries on the final
registration date than necessary to meet the H-1B regular cap under
section 214(g)(1)(A) of the Act, USCIS will weight each unique
beneficiary as described in paragraph (h)(8)(iii)(A)(4)(ii) of this
section and randomly select the number of unique beneficiaries deemed
necessary to meet the H-1B regular cap.
(ii) Sufficient registrations to meet the H-1B regular cap during
initial registration period. At the end of the initial registration
period, if USCIS determines that there is more than a sufficient number
of unique beneficiaries on whose behalf registrations were properly
submitted to meet the H-1B regular cap, USCIS will no longer accept
registrations under section 214(g)(1)(A) of the Act and will notify the
public of the final registration date. USCIS will weight each unique
beneficiary as described in paragraph (h)(8)(iii)(A)(4)(ii) of this
section and randomly select the number of unique beneficiaries deemed
necessary to meet the H-1B regular cap.
(6) * * *
(i) Fewer registrations than needed to meet the H-1B advanced
degree exemption numerical limitation. If USCIS determines that there
are fewer unique beneficiaries on whose behalf registrations were
properly submitted than needed to meet the H-1B advanced degree
exemption numerical limitation, USCIS will notify all petitioners that
have properly registered that their registrations have been selected.
USCIS will continue to accept registrations to file petitions for
beneficiaries who may be eligible for the H-1B advanced degree
exemption under section 214(g)(5)(C) of the Act until USCIS determines
that there is a sufficient number of properly registered unique
beneficiaries to meet the H-1B advanced degree exemption numerical
limitation. USCIS will monitor the number of unique beneficiaries with
properly submitted registrations and will notify the public of the date
that USCIS has received the necessary number of registrations for
unique beneficiaries (the ``final registration date''). The day the
public is notified will not control the applicable final registration
date. If USCIS has received more registrations for unique beneficiaries
on the final registration date than necessary to meet the H-1B advanced
degree exemption numerical limitation under section 214(g)(1)(A) and
214(g)(5)(C) of the Act, USCIS will weight each unique beneficiary as
described in paragraph (h)(8)(iii)(A)(4)(ii) of this section and
randomly select the number of unique beneficiaries deemed necessary to
meet the H-1B advanced degree exemption numerical limitation.
(ii) Sufficient registrations to meet the H-1B advanced degree
exemption numerical limitation. If USCIS determines that there is more
than a sufficient number of unique beneficiaries on whose behalf
registrations were properly submitted to meet the H-1B advanced degree
exemption numerical limitation, USCIS will no longer accept
registrations that may be eligible for exemption under section
214(g)(5)(C) of the Act and will notify the public of the final
registration date. USCIS will weight each unique beneficiary as
described in paragraph (h)(8)(iii)(A)(4)(ii) of this section and
randomly select the number of unique beneficiaries deemed necessary to
meet the H-1B advanced degree exemption numerical limitation.
(7) Increase to the number of beneficiaries projected to meet the
H-1B regular cap or advanced degree exemption allocations in a fiscal
year. Unselected properly submitted registrations for unique
beneficiaries will remain on reserve for the applicable fiscal year. If
USCIS determines that it needs to increase the number of registrations
for unique beneficiaries projected to meet the H-1B regular cap or
advanced degree exemption allocation, and select additional unique
beneficiaries, USCIS will select from among the unique beneficiaries
with
[[Page 60966]]
properly submitted registrations that are on reserve a sufficient
number to meet the H-1B regular cap or advanced degree exemption
numerical limitation, as applicable. If all of the unique beneficiaries
on reserve are selected and there are still fewer unique beneficiaries
than needed to meet the H-1B regular cap or advanced degree exemption
numerical limitation, as applicable, USCIS may reopen the applicable
registration period until USCIS determines that it has received a
sufficient number of registrations for unique beneficiaries projected
as needed to meet the H-1B regular cap or advanced degree exemption
numerical limitation. USCIS will monitor the number of properly
registered unique beneficiaries and will notify the public of the date
that USCIS has received the necessary number of registrations (the new
``final registration date''). The day the public is notified will not
control the applicable final registration date. When selecting
additional unique beneficiaries under this paragraph (h)(8)(iii)(A)(7),
USCIS will select unique beneficiaries with properly submitted
registrations in accordance with paragraphs (h)(8)(iii)(A)(4) through
(6) of this section. If the registration period will be reopened, USCIS
will announce the start of the re-opened registration period on the
USCIS website at www.uscis.gov.
* * * * *
(D) * * *
(1) Filing procedures. In addition to any other applicable
requirements, a petitioner may 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 registration, which means that the
registration was properly submitted in accordance with Sec.
103.2(a)(1) of this chapter, paragraph (h)(8)(iii) of this section, and
the registration tool instructions; and was submitted by the
petitioner, or its designated representative, on behalf of the
beneficiary who was selected for that cap season by USCIS. A petitioner
may not substitute the beneficiary named in the original registration
or transfer the registration to another petitioner. An H-1B petition
filed on behalf of a beneficiary must contain and be supported by the
same identifying information and position information, including SOC
code, provided in the selected registration and indicated on the labor
condition application used to support the petition, and must 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 paragraph
(h)(8)(iii)(A)(4)(i) of this section. 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.
Petitioners must also submit evidence of the passport or travel
document used at the time of registration to identify the beneficiary.
In its discretion, USCIS may find that a change in the beneficiary's
identifying information in some circumstances would be permissible.
Such circumstances could include, but are not limited to, a legal name
change due to marriage or a change in passport number or expiration
date due to renewal or replacement of a stolen passport, in between the
time of registration submission and petition filing. In its discretion,
USCIS may find that a change in the area(s) of intended employment
would be permissible, provided such change is consistent with the
requirement of a bona fide job offer at the time of registration as
stated in paragraph (h)(10)(ii) of this section. USCIS may deny or
revoke the approval of an H-1B petition that does not meet these
requirements.
* * * * *
(iv) * * *
(B) Petition-based cap-subject selections in event of suspended
registration process. In any year in which USCIS suspends the H-1B
registration process for cap-subject petitions, USCIS will allow for
the submission of H-1B petitions notwithstanding paragraph (h)(8)(iii)
of this section and conduct a cap-subject selection process based on
the petitions that are received. Each petitioner must select the
highest OEWS wage level that the beneficiary's proffered wage equals or
exceeds for the relevant SOC code in the area(s) of intended
employment. 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.'' 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. 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 the
Department of Labor's prevailing wage guidance. If a random selection
is necessary, each petition will be assigned the OEWS wage level
selected in accordance with form instructions and will be entered into
the selection pool in a weighted manner as follows: a petition assigned
wage level IV will be entered into the selection pool four times, a
petition assigned wage level III will be entered into the selection
pool three times, a petition assigned wage level II will be entered
into the selection pool two times, and a petition assigned wage level I
will be entered into the selection pool one time. The selection will be
made via computer-generated selection. Petitioners must submit evidence
of the basis of the selected wage level as of the date the petition is
submitted. USCIS will deny petitions indicating that they are exempt
from the H-1B regular cap and the H-1B advanced degree exemption if
USCIS determines, after the final receipt date, that they are not
eligible for the exemption sought. If USCIS determines, on or before
the final receipt date, that the petition is not eligible for the
exemption sought, USCIS may consider the petition under the applicable
numerical allocation and proceed with processing of the petition. If a
petition is denied under this paragraph (h)(8)(iv)(B), USCIS will not
return or refund filing fees.
(1) H-1B regular cap selection in event of suspended registration
process. In determining whether there are enough H-1B cap-subject
petitions to meet the H-1B regular cap, USCIS will consider all
petitions properly submitted in accordance with Sec. 103.2 of this
chapter relating to beneficiaries who may be counted under section
214(g)(1)(A) of the Act, including those who may be eligible for
exemption under section 214(g)(5)(C) of the Act. When calculating the
number of petitions needed to meet the H-1B regular cap, USCIS will
take into account historical data related to approvals, denials,
revocations, and other relevant factors. USCIS will monitor the number
of petitions received and will announce on its website the date that it
receives the number of petitions projected as needed to meet the H-1B
regular cap (the ``final receipt date''). The date the announcement is
posted will not control the final receipt date. If the final receipt
date is any of the first five business days on which petitions subject
to the H-1B regular cap may be received (in other words, if the
numerical limitation is reached on any one of the first five business
days that filings can be made),
[[Page 60967]]
USCIS will weight each petition as described in paragraph (h)(8)(iv)(B)
of this section and randomly select the number of petitions properly
submitted during the first five business days deemed necessary to meet
the H-1B regular cap.
(2) Advanced degree exemption selection in event of suspended
registration process. After USCIS has received a sufficient number of
petitions to meet the H-1B regular cap and, as applicable, completed
the random selection process of petitions for the H-1B regular cap,
USCIS will determine whether there is a sufficient number of remaining
petitions to meet the H-1B advanced degree exemption numerical
limitation. When calculating the number of petitions needed to meet the
H-1B advanced degree exemption numerical limitation, USCIS will take
into account historical data related to approvals, denials,
revocations, and other relevant factors. USCIS will monitor the number
of petitions received and will announce on its website the date that it
receives the number of petitions projected as needed to meet the H-1B
advanced degree exemption numerical limitation (the ``final receipt
date''). The date the announcement is posted will not control the final
receipt date. If the final receipt date is any of the first five
business days on which petitions subject to the H-1B advanced degree
exemption may be received (in other words, if the numerical limitation
is reached on any one of the first five business days that filings can
be made), USCIS will weight each petition as described in paragraph
(h)(8)(iv)(B) of this section and randomly select the number of
petitions properly submitted during the first five business days deemed
necessary to meet the H-1B advanced degree exemption numerical
limitation.
* * * * *
(10) * * *
(ii) Denial for statement of facts on the petition, H-1B
registration, temporary labor certification, or labor condition
application, or invalid H-1B registration. The petition will be denied
if it is determined that the statements on the petition, the H-1B
registration (if applicable), the application for a temporary labor
certification, or the labor condition application were inaccurate,
fraudulent, or misrepresented a material fact, including if the
certifications on the registration are determined to be false. An H-1B
cap-subject petition also will be denied if it is not based on a valid
registration submitted by the petitioner (or its designated
representative), or a successor in interest, for the beneficiary named
or identified in the petition. A valid registration must represent a
bona fide job offer.
(iii) Denial for attempt to unfairly increase the chance of
selection. USCIS may deny a subsequent new or amended petition filed by
the petitioner, or a related entity, on behalf of the same beneficiary,
if USCIS determines that the filing of the new or amended petition is
part of the petitioner's attempt to unfairly increase the chance of
selection during the registration or petition selection process, as
applicable, such as by changing the proffered wage in a subsequent new
or amended petition to an amount that would be equivalent to a lower
wage level than that indicated on the registration, or the original
cap-subject petition if the registration process was suspended.
* * * * *
(11) * * *
(iii) * * *
(A) * * *
(6) The H-1B cap-subject petition was not based on a valid
registration submitted by the petitioner (or its designated
representative), or a successor in interest, for the beneficiary named
or identified in the petition;
(7) The petitioner failed to timely file an amended petition
notifying USCIS of a material change or otherwise failed to comply with
the material change reporting requirements in paragraph (h)(2)(i)(E) of
this section; or
(8) The petitioner, or a related entity, filed a new or amended
petition on behalf of the same beneficiary, if USCIS determines that
the filing of the new or amended petition is part of the petitioner's
(or related entity's) attempt to unfairly increase the chance of
selection during the registration or petition selection process, as
applicable, such as by changing the proffered wage in a subsequent new
or amended petition to an amount that would be equivalent to a lower
wage level than that indicated on the registration, or the original
cap-subject petition if the registration process was suspended.
* * * * *
Kristi Noem,
Secretary, U.S. Department of Homeland Security.
[FR Doc. 2025-23853 Filed 12-23-25; 8:45 am]
BILLING CODE 9111-97-P