WHAT’S HAPPENING
The Department of Homeland Security (DHS) and Department of Labor (DOL) are in the process of introducing new regulations that would significantly impact the rules governing the H-1B visa as well as wages used in connection with the PERM labor certification process.
Both rules are expected to be published as Interim Final Rules (IFRs) in the Federal Register on Thursday, October 8th. Because they are being published as IFRs the agencies are able to forgo the normal notice and comment period. The DHS Rule will take effect 60 days after publication. The DOL Rule will take effect immediately upon publication and will not have a delayed effective date.
WHAT YOU NEED TO KNOW
With respect to the DHS Rule, an advanced copy has not yet been provided but in a press release DHS stated that the rule would:
“Narrow the definition of “specialty occupation as Congress intended by closing the overbroad definition that allowed companies to game the system”;
Require companies to make “real” offers to “real employees,” by “closing loopholes and preventing the displacement of the American worker”; and,
Enhance DHS’s ability to enforce compliance through worksite inspections and monitor compliance before, during, and after an H1-B petition is approved.
With respect to the DOL Rule, titled “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States” the agency did provide an advance copy and one of the main features of the rule will be to increase the wages used for both Labor Condition Applications (LCAs) for H-1B, E-3, and H-1B1 visas as well as for Prevailing Wage Determinations associated with the PERM Labor Certification process. More specifically, the current 4 wage levels are set at approximate percentiles based on national averages and will increase as follows:
Level 1 Wages: currently 17th percentile, will increase to 45th
Level 2 Wages: currently 34th percentile, will increase to 62nd
Level 3 Wages: currently 50th percentile, will increase to 78th
Level 4 Wages: currently 67th percentile, will increase to 95th
The new interim final rule is 157 pages long and was released only this evening so D&S is currently reviewing and will provide further pertinent updates shortly.
The “obvious and compelling” justification the agencies have provided for not allowing for standard notice and comment before enacting the IFRs is to protect the U.S. labor market and ensure that the current programs do “not worsen the economic crisis caused by COVID-19 and adversely affect wages and working conditions of similarly employed U.S. workers,” despite the fact that neither agency cites to any data supporting this assertion.
D&S will continue to monitor this developing situation and provide updates in the coming hours and days as new information is made available.