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

Current State of Play

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On January 21, 2021, DOL announced that it has withdrawn the Office of Foreign Labor Certification H-1B Program Bulletin and a Wage and Hour Division Field Assistance Bulletin (FAB) revising its interpretation of its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 As such the bulletins are no longer in effect.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directs, in part, that 1) all rules pending at the Federal Register that have not been published must be immediately withdrawn and 2) agencies must “consider” postponing the effective dates for regulations that have been published, but not yet taken effect, for 60 days from the date of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Visa Classification Program Final Rule sent to the Federal Register on January 15, but not yet published, will be withdrawn, In addition, any final rule that has already published, but not yet taken effect may upon further agency action be postponed for until March 21, 2021,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.


On January 14, 2021, DOL issued a final rule which adopts, with changes, the interim final rule published at 85 FR 63872 amending the regulations governing permanent labor certifications and Labor Condition Applications to incorporate changes to the computation of prevailing wage levels. The rule will take effect on March 15, 2021. The effective date of the rule will likely be further extended as the President-Elect’s transition team has indicated that the Biden Administration will issue a memorandum on January 20 delaying implementation of “midnight regulations” (i.e. those issued since the election but not yet effective) for 60 days. It is also expected that groups that previously challenged this regulation will continue to litigate the revised final rule. Read AILA's Practice Alert for more information.

The rule was initially published and effective on October 8, 2020. It was struck down on December 1, 2020, alongside a DHS interim final rule that amended requirements for H-1B classification. For more information on the soon to be published rule and information on both the DHS and DOL rules continue to watch this page.


On December 1, 2020, in Chamber of Commerce, et al., v. DHS, et al., finding that the DHS and DOL H-1B wage rules were “promulgated in violation of 5 U.S.C section 553(b),” the U.S. District Court for the Northern District of California set aside the DHS interim final rule, Strengthening the H-1B Nonimmigrant Visa Classification Program, and the DOL interim final rule, Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States. USCIS announced that it will "fully comply with the court’s decision." AILA is monitoring the situation and will provide additional information as it becomes available. On December 2, 2020, AILA’s DOL Liaison Committee reached out to DOL OFLC regarding the decision’s impact. Read this practice alert for more information.

On December 14, 2020, in Purdue University, et al., v. Scalia, et al., a federal judge granted the plaintiffs’ motion for summary judgment against the DOL prevailing wage IFR. The judge ordered DOL to reissue prevailing wage determinations that were issued under the rule. Read AILA’s press statement regarding this suit.


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


Media Resources

Cite as AILA Doc. No. 20100701.