On November 2, 2020, DHS published in the Federal Register its proposed new rule for the 2021 CAP thatwould give priority to H-1B CAP candidates whose employer promises to pay thehighest of the Occupational Employment Statistics (OES) wage levels.
The OES categorizes wages from Levels I throughIV for a particular position in a Metropolitan Statistical Area (MSA). In theH-1B context, the employer then chooses the appropriate wage level based on theexperience and complexity of the position and can file a Labor ConditionApplication (LCA) using the OES wage assigned.
According to the DHS’s proposed rule, only thoseH-1B CAP registrations offering the highest OES wage levels would be selectedfor filing in the 2021 CAP. This means that DHS would first accept Level IVwages, then Level III, etc.
Keeping with the 2020 CAP changes, theUSCIS’s current intent is to continue its electronic pre-registration system,requiring first a registration period of CAP petitions, and a later period offiling. DHS’s proposed rule intends to add a wage level question to itspre-registration form so that only the highest wage levels are selected forfiling.
The Master’s CAP, an allotment of 20,000 H-1Bsdesignated only for candidates possessing a master’s degree from an accreditedU.S. university, is also in place for the 2021 CAP period.
The proposed rule is currently acceptingcomments from the public until December 2, 2020, to which DHS will then respondand may alter some elements of the rule.