While two proposed rules have been overturned, there remains one proposed rule moving through the rulemaking process that would have the effect of usurping the authority of Congress and converting H-1B program into an “advanced level only” visa. On November 2, DHS proposed to amend its regulations governing the process by which USCIS selects H-1B registrations for filing of H-1B cap-subject petitions. The proposed rule would modify the H-1B cap selection process by replacing the random selection process with a wage-level-based selection process. The government’s rationale is that this would better protect the economic interests of U.S. workers, while still allowing U.S. employers to meet their personnel needs and remain globally competitive. The government also takes the view that this new selection process would incentivize employers to offer higher wages or petition for positions requiring higher skills and higher-skilled workers instead of using the program to fill relatively lower-paid vacancies.

This proposed rule would only affect H-1B registrations submitted by prospective petitioners seeking to file H-1B cap-subject petitions. It would be implemented for both the H-1B regular cap and the H-1B advanced-degree exemption, but would not change the order of selection between the two.