Featured Issue: DHS and DOL Rules Altering the H-1B Process and Prevailing Wage Levels

Current State of Play

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March 12, 2021DOL issued a final rule delaying until May 14, 2021, the effective date of the final rule on computation of prevailing wage levels which was published at 86 FR 3608 on January 14, 2021. Additionally, on March 10, 2021, AILA and the Council submitted comments supporting USCIS’s decision to delay the effective date of the final rule that would create a wage-based selection process for H-1Bs until 12/31/21 and urged USCIS to rescind the rule as it is based on a false premise, void ab initio and ultra vires.


On February 8, 2021, USCIS published a final rule delaying the effective date of the rule creating a wage-based selection process for H-1Bs to December 31, 2021. Comments regarding the delay of the effective date will be accepted until March 10, 2021.


On February 1, 2021, DOL published a document in the Federal Register proposing to delay the effective date of the final rule on computation of prevailing wage levels until May 14, 2021. Comments on the proposed delayed effective date must be received by February 16, 2021.


On January 21, 2021, DOL announced that it has withdrawn the Office of Foreign Labor Certification H-1B Program Bulletin and a Wage and Hour Division Field Assistance Bulletin (FAB) revising its interpretation of its regulations concerning which employers of H-1B workers must file Labor Condition Applications for further review of the process for issuing the guidance, as well as review of related issues of law, fact, and policy. As such the bulletins are no longer in effect.


On January 20, 2021, White House Chief of Staff Ron Klain issued a memorandum regarding review of pending regulatory actions which directs, in part, that 1) all rules pending at the Federal Register that have not been published must be immediately withdrawn and 2) agencies must “consider” postponing the effective dates for regulations that have been published, but not yet taken effect, for 60 days from the date of this memorandum. As a result, the modified version of the Strengthening the H-1B Nonimmigrant Visa Classification Program Final Rule sent to the Federal Register on January 15, but not yet published, will be withdrawn, In addition, any final rule that has already published, but not yet taken effect may upon further agency action be postponed for until March 21, 2021, including the H-1B Wage Selection Final Rule. AILA will continue to monitor any agency action taken to delay the effective dates of the rule.


Background

In October 2020, DHS issued the Strengthening the H-1B Nonimmigrant Visa Classification Program Interim Final Rule revising the definition of "Specialty Occupation" and DOL issued the Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States Interim Final Rule, amending the regulations governing permanent labor certifications and Labor Condition Applications to incorporate changes to the computation of prevailing wage levels. Together, these rules upend decades of requirements for the H-1B program.

Read the DHS IFR  Read the DOL IFR

The DHS IFR, Strengthening the H-1B Nonimmigrant Visa Classification Program Interim Final Rule, was published in the Federal Register on October 8, 2020. The IFR is effective December 7, 2020. Comments on the IFR are due December 7, 2020, with comments on associated form revisions due November 9, 2020.

The DOL IFR, Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States, was also published in the Federal Register on October 8, 2020. The IFR is effective October 8, 2020, with comments due November 9, 2020.

On November 2, 2020, USCIS published another proposed rule entitled Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject H-1B Petitions that will dramatically alter the way in which H-1B registrations are selected for the annual H-1B statutory cap, as established by Congress. The proposed rule seeks to replace the current random selection process with a new wage-based selection process which would prioritize the selection of H-1B registrations based on employers who pay the highest wages. Comments on the proposed rule are due 12/2/20, with comments on associated form revisions due 1/4/21.


Find out more about these policies:


Strengthening the H-1B Nonimmigrant Visa Classification Program Interim Final Rule (DHS)

Government Announcements | AILA Resources | Litigation

Government Announcements

AILA Resources

Litigation


Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States (DOL)

Government Announcements | AILA Resources | Litigation | Partner Resources

Government Announcements

AILA Resources

Litigation

Partner Resources


Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject H-1B Petitions (USCIS)

Government Announcements | AILA Resources

Government Announcements

AILA Resources


DOL Bulletins Revising Interpretation of Regulations Concerning LCAs

Government Announcements


Media Resources

Cite as AILA Doc. No. 20100701.