Visalaw.ai Answers: Arguments Against the DHS/USCIS NPRM to Weight H-1B Cap

Prompt: I want to write a comment criticizing the DHS/USCIS's NPRM and talking about the negative repercussions we'll see if this becomes final. Please give me arguments and issues I can raise in a comment.

Overview

Here are key arguments and issues you can raise in a critical comment on DHS/USCIS’s NPRM to weight H-1B cap selections by OEWS wage level (Levels I–IV):

- Statutory authority and APA concerns: Congress did not authorize DHS to prioritize H-1B cap allocation by wage; layering a wage-based preference may exceed statutory authority and be arbitrary and capricious, especially given the NPRM’s limited support for salary as a proxy for skill [1][2].

- Flawed premise that wage level equals skill: The proposal leans on “salary as a reasonable proxy for skill,” but OEWS wage levels reflect market conditions, geography, and employer type—not skill alone—leading to arbitrary outcomes [3].

- Disparate impact on entry-level and recent graduates: Level I and Level II roles face significantly lower selection odds (Level I gets one “entry” vs. Level IV gets four), undermining early-career opportunities and potentially the intent of the advanced degree exemption [4][5].

- Harm to small, startup, rural, and lower-paying sectors: Employers that cannot hit Level III/IV wages will be structurally disadvantaged compared to large, high-margin firms, narrowing employer diversity and regional economic benefits [6][7].

- Geographic and occupational inequities: Weighting by level (not absolute wage) across varied SOC codes and areas can yield irrational cross-occupation and cross-region comparisons, favoring some occupations/markets over others without evidence of higher “skill” [8][9].

- Penalizing distributed and multi-location work: Using the “lowest applicable wage level” for multiple locations discourages remote work and multi-site assignments and unfairly depresses selection odds for compliant employers with national footprints [10][11].

- Increased compliance burdens and uncertainty: New attestations to OEWS wage level, SOC code, and area(s) of intended employment at registration will increase errors, RFEs, and denials, especially where employers rely on non-OEWS surveys and must “map” to OEWS levels—an issue the NPRM leaves unclear [12][13].

- Process integrity concerns: The weighting creates incentives to inflate wage levels at registration; while USCIS notes the employer must pay at least the required wage, the NPRM does not detail robust verification and sanctions for misreporting at the registration stage [14][15].

- Weak justification vs. severe distributional effects: DHS asserts the change “increases the chance for higher paid…beneficiaries” and “does not effectively preclude” lower levels, but a 4:1 weighting significantly depresses Level I odds, approaching functional exclusion during high-demand years [16][17][18].

- If registration is suspended, same problems persist: Extending wage-based weighting to petition selection during registration outages replicates these concerns without the guardrails of the registration system [19][20].

Detailed analysis

- Statutory/APA issues

  - The H-1B cap scheme created by Congress sets numerical limits and a discrete advanced degree exemption; it does not authorize DHS to prefer beneficiaries by wage level. The NPRM introduces a new, extra-statutory prioritization criterion—wage level—that is not tied to any eligibility requirement. The central rationale is that “salary is a reasonable proxy for skill,” and that weighting will tend to benefit “higher skilled or higher paid” workers [21][22]. A comment can argue this rationale is insufficient under the APA because wage levels conflate skill with local labor market conditions, employer type, and occupation-specific pay norms, and the agency does not adequately grapple with these confounders.

  - DHS claims lower levels are “not effectively precluded,” yet the proposed mechanics enter Level IV beneficiaries four times in the pool while Level I is entered only once, creating a substantial disparity in selection odds [23][24]. A comment can assert that DHS did not reasonably quantify or justify this disparity against statutory objectives.

- Flawed proxy and arbitrary cross-occupation comparisons

  - The NPRM would weight selection “generally based on the highest OEWS wage level that the beneficiary’s proffered wage would equal or exceed for the relevant SOC code and area(s) of intended employment” [25][26]. Because OEWS levels are relative within each occupation and area, a Level IV in a low-wage region or low-paying occupation is not meaningfully “more skilled” than a Level II in a high-wage region or high-paying occupation. Weighting by level, not absolute wage or other skill metrics, risks arbitrary cross-occupation outcomes without evidentiary support.

- Negative impact on entry-level workers and U.S.-educated graduates

  - Early-career roles are frequently classified at Level I or II. Under the NPRM, Level I gets one entry, Level II two entries, Level III three, and Level IV four [27]. This materially lowers selection odds for entry-level candidates despite DHS’s assurance that lower levels are not “effectively precluded” [28]. In both the regular cap and advanced degree exemption pools, the weighting would dampen opportunities for new graduates, including those with U.S. advanced degrees, undermining workforce development goals [29].

- Disadvantaging small, startup, rural, and mission-driven employers

  - The agency’s rationale is to “increase the chance” of selection for higher-paid beneficiaries [30]. Smaller or resource-constrained employers—startups, rural firms, and certain cap-subject nonprofits—often cannot meet Level III/IV wages despite bona fide specialty occupation needs. The rule will consolidate cap numbers among large, high-margin employers, narrowing the diversity of industries and regions able to access H-1B talent [31].

- Multi-location and remote work penalty

  - The NPRM indicates that, where a worker will be placed in multiple locations, “the lowest applicable wage level will be used” to prevent gaming [32]. This approach penalizes fully compliant employers with distributed or client-site models by forcing them into lower weight categories even when many worksites justify higher wages. It also creates pressure to limit mobility and remote arrangements, contrary to modern business practices [33].

- Compliance burdens, ambiguity, and enforcement risks

  - New registration requirements compel employers to select the “highest OEWS wage level” and provide the SOC code and area(s) of intended employment anchoring that level [34][35]. For employers using non-OEWS wage sources, the NPRM contemplates additional steps but does not spell out how to reliably “map” to OEWS levels, increasing error risk and litigation exposure [36].

  - The rule could spur over-reporting of wage levels at registration. While employers must pay at least the required wage, the NPRM does not lay out robust, specific verification or penalties tied to the registration-stage wage-level certification, inviting inconsistent adjudications and more RFEs/denials later [37][38].

- Process integrity vs. existing beneficiary-centric safeguards

  - DHS proposes layering wage-based weighting “in conjunction with the existing beneficiary-centric selection process” that already reduces multiple-registration gaming by focusing on unique beneficiaries [39][40]. A comment can argue that the beneficiary-centric system sufficiently addresses abuse concerns and that wage weighting adds complexity and inequity without compelling evidence of additional integrity gains.

- Extending weighting to years with suspended registration

  - The proposal would apply the same wage-based weighting to petitions if the registration process is suspended (e.g., technical failures), entering Level IV petitions four times and Level I once [41]. This replicates all of the foregoing equity and legality concerns in a less controlled environment [42][43].

- Alternatives and less burdensome options (for consideration in your comment)

  - Maintain beneficiary-centric random selection without wage weighting; or, if any weighting is adopted, use narrower spreads (e.g., Level I–IV weights that reduce disparity) and publish data justifying the chosen ratios, rather than a 1:4 spread [44].

  - Pilot the system in one cap season with comprehensive public reporting on selection distributions by wage level, SOC, and geography before making it permanent [45].

  - Permit absolute-wage or occupation-specific normalizations to mitigate cross-occupation/geography distortions, or set minimum shares for each wage level to guard against de facto exclusion of lower levels [46][47].

Conclusion

The NPRM would shift H-1B cap allocation from a random, beneficiary-centric selection to a wage-weighted system that multiplies selection chances for higher OEWS levels (Level IV entered four times vs. Level I once). The agency’s core premise—salary equals skill—is contestable. The mechanics risk disadvantaging entry-level workers, small/startup and rural employers, and occupations/regions with lower wage norms; they penalize multi-location work; and they add ambiguity and compliance risk without clear integrity gains. These distributional and legal concerns, combined with limited evidence in the record, provide substantial grounds for critical comment and requests for less burdensome alternatives [48][49][50][51][52][53][54][55].

Follow-up legal research questions to explore

- What specific empirical evidence does DHS cite to substantiate “salary is a reasonable proxy for skill,” especially across SOC codes and geographies? [56][57]

- How will USCIS verify wage level claims at registration and harmonize discrepancies at petition stage? What are the stated penalties for misreporting or downshifting wages post-selection? [58][59]

- How must employers using non-OEWS surveys determine the “equivalent” OEWS wage level for registration, and what documentation will USCIS expect? [60][61]

- What is the projected selection distribution by wage level under the proposed 1–4 weighting, and how does DHS justify that lower levels are not “effectively precluded”? [62][63]

- How will USCIS treat multiple worksites and remote arrangements in determining the “lowest applicable wage level,” and can employers submit alternative structures to avoid penalization? [64][65]

- In years when registration is suspended, what safeguards will govern wage-based petition selection to ensure consistency and prevent arbitrary outcomes? [66]

- What alternatives did DHS consider (e.g., modified weights, minimum shares per wage level, or continued random selection) and why were they rejected? [67]

Citations:

[1] Breaking, DHS Proposes Major Overhaul of H-1B Lottery (Page 3)

[2] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 22)

[3] Breaking, DHS Proposes Major Overhaul of H-1B Lottery (Page 3)

[4] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 40)

[5] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 6)

[6] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 6)

[7] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 22)

[8] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 25)

[9] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 49)

[10] Breaking, DHS Proposes Major Overhaul of H-1B Lottery (Page 3)

[11] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 25)

[12] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 49)

[13] 09/24/25 DHS Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 49)

[14] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 47)

[15] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 25)

[16] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 56)

[17] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 40)

[18] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 22)

[19] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 32)

[20] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 6)

[21] Breaking, DHS Proposes Major Overhaul of H-1B Lottery (Page 3)

[22] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 22)

[23] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 40)

[24] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 22)

[25] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 6)

[26] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 25)

[27] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 40)

[28] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 22)

[29] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 6)

[30] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 56)

[31] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 6)

[32] Breaking, DHS Proposes Major Overhaul of H-1B Lottery (Page 3)

[33] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 25)

[34] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 25)

[35] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 49)

[36] 09/24/25 DHS Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 49)

[37] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 47)

[38] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 25)

[39] 09/24/25 DHS Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 41)

[40] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 6)

[41] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 32)

[42] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 6)

[43] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 32)

[44] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 40)

[45] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 56)

[46] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 25)

[47] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 49)

[48] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 6)

[49] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 22)

[50] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 25)

[51] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 40)

[52] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 49)

[53] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 32)

[54] Breaking, DHS Proposes Major Overhaul of H-1B Lottery (Page 3)

[55] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 56)

[56] Breaking, DHS Proposes Major Overhaul of H-1B Lottery (Page 3)

[57] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 22)

[58] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 25)

[59] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 47)

[60] 09/24/25 DHS Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 49)

[61] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 49)

[62] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 40)

[63] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 22)

[64] Breaking, DHS Proposes Major Overhaul of H-1B Lottery (Page 3)

[65] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 25)

[66] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 32)

[67] Notice of Proposed Rulemaking - Weighted Selection Process for Registrants and Petitioners Seeking to File CapSubject H-1B Petitions (Page 56)