Comments to DHS on H-1B Prioritization Rule

Wednesday, December 2, 2020 - 12:15pm

 

December 2, 2020

Chief Charles L. Nimick
Business and Foreign Workers Division
Office of Policy and Strategy
U.S. Citizenship and Immigration Services
U.S. Department of Homeland Security
20 Massachusetts Avenue , NW
Washington, D.C. 20 259

By electronic submission: www.regulations.gov

RE: Modification of Registration Requirement for Petitioners Seeking to File Cap -
Subject H -1B Petitioners
85 Fed. Reg. 6 9236 (Novem ber 2, 20 20 )
RIN 16 15 -AC61

Dear Chief Nimick :

The U.S. Chamber of Commerce submits the following comm ents regarding the notice of
proposed rulemaking referenced above . The Chamber is extremely concerned that this proposal
would have a profoundly negative on the business communit y. The pro visions that drastically
alter the H -1B registration selection process are in consistent with the stat utory text governing the
operation of the H-1B program , as U.S. Citizenship and Immigration Services ( “USCIS ”) seeks
to exercise authority that Congress has not granted to the agency . Moreover, the changes
suggested in this proposal would significantly hinder the ability of companies across a host of
industries to meet their work force needs . Policies that disrupt the long -term workforce planning
decisions of companies will have the effects of limit ing business expansion, economic growth,
and job creation in the U.S.

We implore USCIS to abandon this effort to impose these arbitrary and capricious
changes to the H -1B program’s operation. Should the Department of Homeland Security
(“DHS ,” “the Department” ) desire to pursue a formal rulemaking effort on t his issue, we strongly
that DHS do so in a much more methodical , deliberative fashion that provides stakeholders with
more opportunities to provide input to USCIS prior to the commencement of the formal
rulemaking process.

THIS WAGE PRIORITIZATION SCHEME IS STATUTORILY IMPERMISSIBLE

In design ing how the H -1B program should be administered by the executive branch,
Congress created clear parameters for how cap -subject H -1B visas should be awarded in a given
fiscal year . The Imm igration and Nationality Act established various parameters, including an
annual quota for new H -1B recipients , certain enumerated exemptions to said annual quota, and
most importantly how the executive branch should prioritize the issuance of these cap -su bject H-
1B visas .1 The statutory annual cap -subject H -1B quota is set at 65,000 visas , with another
20,000 visas allocated for qualifying individuals who are covered by the U.S. advanced degree
exemption, for a total of 85,000 new H -1B recipients each fiscal year. With regard to how H-
1B visa s are issued to prospective beneficiaries who are subject to the 65,000 annual quota,
Congress specifically stated that aliens “who are subjected to the numerical limitations…shall be
issued visas (or otherwise provided nonimmigrant status) …in the order in which petitions are
filed for such visas or status. 

In using the term “shall,” Congress emphasized that this requirement was not subject to
the discretion of the Secretary or any other Departm ent official. The statute does not authorize
the Department to use any other basis for selecting foreign nationals who will receive visas
subject to the annual quota. This point is critical, as companies fiercely compete for these visas
for their workers every fiscal year. The data bear this out, as DHS noted in its proposal that it is
a common occurrence for the amount of cap-subject H -1B petitions filed by American employers
is significantly higher than the number of visas supplied under the statute in a given fiscal year.

The Department’s proposal completely ignores the governing statutory text, as it seeks to
replace this purely procedural rule based on when petitions are filed. In doing so, USCIS claims
the authority to select among the req uests for H-1B visas based on its assessment of the relative
substantive merit of the aliens who would receive the visas. USCIS justifies this significant
policy change due to its stated preference that cap-subject H -1B visas should be granted to
individuals w ho are the most skilled and highest paid H -1B workers. 5 In the view of DHS ,
individuals earning the highest wages relative to their S tandard Occupational Classification code
and area (s) of intended employment should be given priorit y with respect to the allocation of
cap -subject H -1B visas because the Department believes that one’s salary is a reasonable proxy
for skill level in a given field of employment. 

Reasonable minds can disagree as to what the optimal policy would be with respect to the
issuance of cap -subject H -1B visas . However, the executive branch is bound by the terms that
Congress created for the program’s administration if it wants to make regulatory changes to a
federal program . USCIS cannot craft the new conditions governing the issuance of cap -subject
H-1B visas that it seeks to impose through this proposal . In fa ct, when DHS finalized the
implementation of the H -1B Registration system that it seeks to amend through this proposal , the
Department expressed its view that prioritizing registration selection on other factors, such as
salary, would require statutory changes.The statute governing the issuance of H -1B visas has
not changed since DHS made those public statements, but DHS now desires to rank and select
H-1B registration s based up on the wage level being offered to the putative H -1B beneficiary.
That ranking and selection process would give priority to “the highest OES wage level that the
proffered wage would equal or exceed . . . , beginning with OES wage level IV and proceeding
in descending order with OES wage levels III, II, and I. ” It is our view that if DHS wants to
finalize this proposal and make these types of substantive changes to the H-1B, the only way
they may do so legally is if Congress passes legislation providing them with the authority to
effectuate these changes.

Similarly, the proposal’s insistence on a wage-based “ranking and selection” process for
the 20,000 visas subject to the advanced degree exemption is contrary to the plain language of
the provisions governing the exemption’s operation . When Congress created the advanced
degree exemption, it set forth its own pr ioriti es regarding how it wanted the executive branch to
adjudicate H-1B petitions by providing special treatment for a subset of putative H-1B
beneficiaries. 10 The existence of this exemption in the INA proves that Congress can exercise its
authority over immigration matters to implement preferences for certain subcategories of H-1B
nonimmigrants. The exemption created by Congress made more H-1B visas available for
individuals with advanced degrees from U.S. universities, but USCIS would adjudicate this
subset of H-1B visa petitions based upon when those petitions were filed.

The DHS proposal, with its new criteria designed to provide more favorable treatment for
a select group of potential H -1B recipients seeking visas under with advanced degree exemption,
seeks to add new agency priorities governing the adjudication of H-1B petitions for this subset of
potential nonimmigrant visa recipients based upon the wages being offered to the worker. These
new wage -based priorities are inconsist ent with the statutory text. By supplanting the temporal
filing considerations that Congress chose to implement statutorily with this new wage
methodology, DHS and USCIS are trying to substitute their judgment for Congress’ judgment,
which they simply can not do. This proposal would clearly strike a different balance than the one
that Congress sought to strike with the advanced degree exemption. DHS does not possess the
authority to rewrite the statutory text in the INA that governs this process.

Related to these concerns are the issues several employers have regarding the changes
that DHS made to the relationship between the adjudication of the visas provided under the
advanced degree exemption and the general H -1B quota of 65,000. The Chamber highlighted
these concerns in our comments last year when DHS created the H-1B Registration System, and
those concerns bear repeating, as this move remains statutorily suspect in the view of many
Chamber members.


As in January 2019, the Chamber remains concerned that the provisions in the proposal
adjusting the adjudication order of the regular cap and the advanced degree exemption conflict
with the statutory provisions governing the issuance of H-1B visas under the Immigration and
Nationality Act (INA). The INA is clear that the numerical limitations governing the 65,000
visas allotted under the regular H-1B cap shall not apply to anyone who qualified under the
advanced degree exemption until the number of aliens who are exempted from the regular cap’s
numerical limitations during a given fiscal year exceeds 20,000. If the H-1B regular cap
cannot apply to someone qualifying under the advanced degree exemption until 20,000
individuals have been chosen to be exempted from the cap , the language of the statute would
appear to require that the allotment of the visas, and in the case of the H-1B registration program,
the approval of the registrations, must be conducted for the advanced degree exemption first
before the approval of registrations for the regular cap.


DHS did not revisit this particular issue in this proposal, thus leaving intact the process
whereby USCIS adjudicat es the 65,000 visas in the annu al H -1B quota prior to adjudicating the
20,000 visas under the advanced degree exemption. The Chamber believes that this arrangement
presents a legal vulnerability to the agency ’s rule s governing the operation of the H -1B
registration system . I f DHS wants to ensure that its rules governing its registration program are
on solid legal ground, then it should abandon both its wage prioritization scheme and the reversal
of the adjudications process between the general H -1B quota and the advanced degree
exemption.


THIS PROPOSAL WOULD CAUSE SIGNIFICANT WORKFORCE DISRUPTIONS

This proposal has companies across various industries very concerned about their
business’s continued ability to meet their workforce needs moving forward. DHS stated that it
believed a worker’s salary is a good proxy for that worker’s skill , which forms the Department’s
justification for using the OES wage level that corresponds with the potential H -1B worker’s
salary to ensure that the most skilled or highest paid workers come into the country on the H -1B
program. 

Many companies are specifically concerned about this proposal ’s impact on their
business’s continued ability to hire foreign national professionals that are beginning their careers
in America . These firms worry that this H-1B wage prioritization proposal would all but
foreclose their ability to hire the people they need to expand their businesses, increase
productivity, undertake important research and development initiatives, and create mor e jobs in
the U.S. Various Chamber members, whether they are technology companies, financial services
firms, pharmaceutical companies, heavy equipment manufacturers, among others, hire a
significant amount of foreign nationals that graduate from U.S. universities, oftentimes with
advanced degrees . Cutting off this source of talent would be incredibly disruptive to the
operations of many American companies .

Several companies informed me that many of their key workers on their critical R&D
initiatives are young er workers who are extremely bright and promising employees , but they ha d
very little professional work experience at the time they were hired , thus the se workers are paid
wages that are commensurate with their skills and work experience at OES Wage Level I or II .
M any of the individuals that will be critical to the se company’s future R&D efforts would be
harmed by these new wage requirements, particularly since th is new methodology for awarding
visas would apply to both the 65,000 visas awarded the H-1B program’s general fiscal year quota
and the 20,000 visas provided under the advanced degree exemption. In fact, the Department’s
proposal would actively undermine the goa l’s set by Congress when they provided an additional
20,000 H -1B visas for graduate -level degree holders from U.S. universities.

Similarly, other Chamber members, particular ly those stakeholders in the healthcare
industry, are very concerned about the impact this rule change would have on their ability to
continue hiring foreign medical graduates on H -1B visas. Many of these young physicians are
critical for healthcare providers to meet the needs of their patients, especially for those doctors
that are serving rural and other medically underserved areas in the U.S. The disruptions caused
by incorporating this wage prioritization propos al into the H -1B registration proces s would be
profound on these employers, as they continue to struggle in confronting the ongoing COVID -19
pandemic.

Many Chamber members have been emphatic in expressing their view s to us that using
the OES wage levels at which a prospective H -1B employee is being paid is an inadequate proxy
for the worker’s skill level. To that end, m any companies insist that the use of the OES wage
level is also a poor proxy for how much an employer values/needs the contributions of that
worker at their business. Using th ese wages levels as skill proxies is impe rfect for many reasons,
but the Labor Department’s guidance on this issue is instructive, as the DOL guidance lays out
that these wage levels are utilized to evaluate not just the work er’s skill , but their education, their
experience, any special skills, o ccupational licenses, supervisory duties, among other factors
associated with the worker’s employment at the company. 

Given the multi -factor analysis underpinning the wage level associate d with the worker,
the higher wage level workers that DHS and USCIS insist will be best for the country would likely capture workers with more experience and seniority in their work history , but American
employers value professionals at all skill level s with varying levels of education, work
experience, and other skills that an employer values. If this proposal is finalized, this wage
prioritization scheme would result in the federal government meddling in the workforce planning
decisions of many Ameri can employers , with the federal government substituting its judgment
for companies need in place of the business judgment of an employer that is competing in the
marketplace . This example of government heavy -handedness is one of many immigration
regulations that is front of mind for many employers , as the prospective difficulties in meeting
their workforce needs has many companies revisit their long -term development an d investment
plan s in the U.S. Given the problems this propos al would cause for many American companies,
the Department should abandon this approach .

CONCLUSION

Businesses across multiple sectors of the U.S. economy are extremely concerned about
the operational disruption s their companie s would confront should this rule be finalized and
implemented . We urge USCIS and DHS to withdraw this rul e to avoid causing significant
disruptions to the operations of many American businesses. Should DHS desire to continue
work ing on regulations that address this issue, we implore the Departme nt to work with
interested stakeholders by either issuing a Request for Information or an Advance Notice of
Proposed Rulemaking before embarking upon the formal rulemaking processing. This would
provide interested stakeholders with a sufficient amount of time to provide the Department with
data and opportunities for meetings to help inform DHS and USCIS as to what type of
regulatory/administrative changes could help the Department achieve its policy objective s
with out causing an undue amount of uncertainty and disruption for American businesses that rely
upon the H -1B program to meet their company’s workforce needs.

Thank you for considering our views.

Sincerely,

Jonathan Baselice
Executive Director, Immigration Policy
U.S. Chamber of Commerce