Re: Weighted Selection Process for Registrants and Petitioners Seeking to File Cap-Subject H-1B Petitions, CIS No. 2820-25; DHS Docket No. USCIS-2025-0040

Congress created the H-1B nonimmigrant visa program to authorize DHS to admit limited numbers of high-skill workers to the United States temporarily. The program allows U.S. employers to temporarily employ foreign workers in specialty occupations, defined by statute as occupations that require the theoretical and practical application of a body of highly specialized knowledge and a bachelor’s or higher degree in the specific specialty, or its equivalent.

Congress has imposed restrictions on immigration, including wage requirements for H-1B visa holders and other foreign workers, to “preserve jobs for American workers,” and ensure safeguards to the domestic labor market. Section 214(g)(1) of the Immigration and Nationality Act (INA) limits H-1B admissions to 65,000 per fiscal year, not including spouses or children who accompany principal H-1B visa holders. Foreign workers who are 1) employed or received an offer of employment at an institute of higher education or a related or affiliated nonprofit entity; 2) are employed at a nonprofit research organization or a governmental research organization; or 3) have earned a master’s degree or higher degree from a U.S. institution of higher education, until the number of aliens who are exempted from such numerical limitation during such fiscal year exceeds 20,0000 are not subject to the 65,000 cap prescribed by section 214(g)(1)(A). Section 214(g)(4) also limits the period of authorized admission of H-1B visa holders to no more than six years.

Current DHS policies require the U.S. Citizenship and Immigration Services (USCIS) to select registrations on a purely random basis, utilizing a lottery system, when demand for H-1B visas exceeds the numerical limit set by statute. All petitioners seeking to file an H-1B cap-subject petition must first submit a registration for each beneficiary on whose behalf they seek to file an H-1B cap-subject petition to USCIS. The current selection process also allows for selection based solely on the submission of petitions in any year in which the registration process is suspended by the agency. In such case, USCIS would also utilize a random selection process for any year in which the number of petitions received on the final receipt date exceeds the applicable numerical limitation.

While the INA requires employers to pay H-1B workers the greater “of the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question,” or the “prevailing wage level for the occupational classification in the area of employment,” the statute also provides that, when a government survey is used to establish the wage levels, “such survey shall provide at least 4 levels of wages commensurate with experience, education, and the level of supervision.” DOL’s regulations set four prevailing wage levels classified as “entry,” “qualified,” “experienced,” and “fully competent,” respectively, relative to the occupation.

Current regulations allow H-1B employers to unlawfully underpay H-1B workers. The U.S. Department of Labor (DOL) has set the wage levels to correlate to a worker’s skill level as follows: Level 1: 17 percent; Level 2: 34 percent; Level 3: 50 percent; and Level 4: 67 percent. Notably, both Level 1 and Level 2 are set significantly below actual prevailing (or average) wages (set at Level 3).

DHS data shows that the H-1B program is neither used to bring “the best and the brightest” workers to the United States nor pay them fairly compared with their U.S. worker counterparts. The majority of H-1B registrations are proffered wages at Level 1 and Level 2, with only 28.53 percent of H-1B petitions received in fiscal years 2018 and 2019 filed for Level 4 and Level 3 wages. Under the current framework, lower wage level workers (i.e., workers with lower levels of experience, education, and/or skill) are able to crowd out workers with higher levels of experience, education, and/or skill from receiving visas.

Federal regulations also provide inadequate protections to U.S. workers that may be competing with H-1B workers. Very few H-1B employers are required to confirm with DOL that hiring H-1B workers will not displace U.S. workers. Most H-1B employers are required to merely attest as a part of their labor certification application that bringing on H-1B workers will not negatively impact the working conditions of their current employees. For instance, employers are only compelled to attest that they will not displace U.S. workers if they are paying the H-1B worker less than $60,000 per year or the worker has not earned a degree higher than a bachelor’s. As a result, many companies are able to circumvent even these minimal protections.

In addition to structural flaws, the H-1B nonimmigrant visa program has been plagued with fraud and abuse since its inception. Numerous reports indicate unacceptably high rates of employers underpaying H-1B workers, companies forcing their U.S. workers to train their H-1B replacements as a condition of receiving severance and unemployment insurance, for-profit companies colluding with universities and other cap-exempt entities to cheat the system and obtain workers without participating in the H-1B lottery.

Moreover, site visits conducted by the USCIS Fraud Detection and National Security Division (FDNS) have uncovered significant amounts of noncompliance in the program since 2009, when the agency began its compliance review program. For instance, DHS reported that between fiscal years (FY) 2019–22, USCIS conducted a total of 27,062 H–1B compliance reviews and found 5,037 of them, equal to 18.6 percent, to be noncompliant or indicative of fraud. That marked an increase from FY 2013-16, which found 12 percent noncompliance (3,811 found noncompliant of 30,786 compliance reviews) and FY 2016-2019, which found 11.4 percent noncompliance (2,341 found noncompliant of 20,492).