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

Current State of Play

Stop Button

June 29, 2021 - DOL announced via its website that in light of the federal district court's ruling on June 23, 2021, vacating the DOL Final Wage Rule, the operative version of the regulations at 20 CFR 656.40 and 20 CFR 655.731 continues to be the version in place on October 7, 2020.


June 23, 2021 – A district court issued an order in Chamber of Commerce, et al. v. DHS, et al. vacating the DOL Final Rule, Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States and remanding the matter back to the DOL. DOL is considering the rule on remand and could issue a revised rule by way of a new rulemaking process.


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.


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

Litigation

AILA Resources


DOL Bulletins Revising Interpretation of Regulations Concerning LCAs

Government Announcements


Media Resources

Cite as AILA Doc. No. 20100701.