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

Current State of Play

March 12, 2021 – DOL 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.

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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.

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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.

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On January 21, 2021, DOL announced that it has withdrawn the Office of Foreign Labor Certification H-1B Program Bulletin and a Wage and Hour Division Field Assistance Bulletin (FAB) revising its interpretation of its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 As such the bulletins are no longer in effect.

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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directs, in part, that 1) all rules pending at the Federal Register that have not been published must be immediately withdrawn and 2) agencies must “consider” postponing the effective dates for regulations that have been published, but not yet taken effect, for 60 days from the date of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Visa Classification Program Final Rule sent to the Federal Register on January 15, but not yet published, will be withdrawn, In addition, any final rule that has already published, but not yet taken effect may upon further agency action be postponed for until March 21, 2021,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.

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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.

• AILA Press Statement: Sweeping Changes Will Alter H-1B Process and Harm American Businesses - October 7, 2020
• Practice Alert: Forthcoming Regulations Would Fundamentally Impact the H-1B Visa Program and Prevailing Wage Levels
• Media Resources

Find out more about these policies:

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

Government Announcements | AILA Resources | Litigation

Government Announcements

• CIS Ombudsman’s Office Update: U.S. District Court Vacates the USCIS Strengthening the H-1B Program Interim Final Rule – December 10, 2020
• USCIS Press Release: U.S. District Court for the Northern District of California Vacates the Strengthening the H-1B Program Interim Final Rule - December 4, 2020
• USCIS Interim Final Rule Revising Definition of “Specialty Occupation” (85 FR 63918, 10/8/20)
  • DHS Press Release: Department of Homeland Security and Department of Labor Rule Restores Integrity to H-1B Visa Program - October 6, 2020

AILA Resources

• AILA and Partners Submit Comments on USCIS Interim Final Rule Making Changes to H-1B Regulations - December 7, 2020
• AILA and the Council Submit Comments Opposing Changes to the H-1B Visa Program – December 7, 2020
• AILA Comment Guidance: DHS H-1B Interim Final Rule Redefining Specialty Occupation
• AILA Submits Comments on Proposed Revisions to Form I-129 - November 9, 2020
• Practice Alert: Key Provisions of the DHS IFR Amending Requirements for H-1B Nonimmigrant Visa Classification - October 9, 2020

Litigation

• District Court Sets Aside DHS and DOL H-1B Wage Rules (Chamber of Commerce, et al., v. DHS, et al., 12/1/20)
  • The Chamber and Partners File Complaint Requesting the DHS and DOL H-1B Rules Be Set Aside (Chamber of Commerce, et al., v. DHS, et al., 10/19/20)

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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

• DOL Delay of Effective Date of Final Rule on Computation of Prevailing Wage Levels (86 FR 13995, 3/12/21)
• DOL Proposed Delay of Effective Date of Final Rule on Computation of Prevailing Wage Levels (86 FR 7656, 2/1/21)
• OFLC Announces Plan for Reissuing Certain Prevailing Wage Determinations Issued Under DOL’s Prevailing Wage Rule – January 22, 2021
• DOL Final Rule on Computation of Prevailing Wage Levels (86 FR 3608, 1/14/21)
  • DOL Press Release: U.S. Department of Labor Issues Final Rule to Reform Prevailing Wages for Foreign Worker Programs to Prevent Potential Abuses – January 12, 2021
• OFLC Announces Updates to Implementation of Prevailing Wage Rule in Response to District Court Orders – December 3, 2020
• DOL Interim Final Rule on Computation of Prevailing Wage Levels (85 FR 63872, 10/8/20)
  • DOL Issues Round Two of FAQs on Interim Final Rule on Computation of Prevailing Wage Levels – October 29, 2020
  • DOL Issues Implementation FAQs on Interim Final Rule on Computation of Prevailing Wage Levels - October 6, 2020
  • DOL Press Release: U.S. Department of Labor Issues Interim Final Rule to Protect Wages of American Workers – October 6, 2020

  • DOL OFLC Announcement: U.S. Department of Labor Updates Regulations for Wages Paid to Certain Immigrant and Nonimmigrant Foreign Workers and Better Protect the Wages and Job Opportunities of United States Workers - October 6, 2020. Per DOL OFLC:

    Implementation Schedule:

    • On October 8, 2020, employers and their authorized attorneys or agents will be able to:
      
      • Access revised OES prevailing wage data for each SOC and area of intended employment at https://www.flcdatacenter.com/;
      • Use the Foreign Labor Application Gateway (FLAG) system to submit LCAs at https://flag.dol.gov/; and
      • Continue to submit requests for prevailing wage determinations using the FLAG system.
    • On October 13, 2020, the NPWC will begin issuing prevailing wage determinations using the revised OES prevailing wage data computed for the Interim Final Rule. This brief delay in issuing wage determinations is necessary to complete the required technical changes to the FLAG system's internal prevailing wage determination module and reduce the risk of unintended system problems or errors that may impact customers and OFLC staff.
    • OFLC will continue to issue non-OES based prevailing wages (e.g. employer-provided surveys or collective bargaining agreements) without delay.
• DOL Issues Implementation FAQs on Interim Final Rule on Computation of Prevailing Wage Levels - October 6, 2020

AILA Resources

• Practice Alert: DOL Final Rule Will Dramatically Increase Prevailing Wages – January 14, 2021
• Practice Alert: AILA DOL Liaison Committee Follows Up with DOL Concerning DOL Wage Rule Set Aside by District Court – December 2, 2020
• AILA Submits Comments on DOL's Interim Final Rule on Computation of Prevailing Wage Levels - November 9, 2020
• Practice Pointer: Roadmap to Alternative Wage Surveys for LCAs and PWDs – October 30, 2020
• Practice Pointer: Proceed with Caution - Using Less Common SOC Occupations in O*NET – October 21, 2020
• Practice Alert: DOL Interim Final Rule Advance Copy Indicates Changes to Computation of Prevailing Wage Effective October 8, 2020 - October 8, 2020

Litigation

• District Court Orders DOL to Reissue Prevailing Wage Determinations (Purdue University, et al., v. Scalia, et al., 12/14/20)
  
  • AILA Press Statement: Big Win on Pro Bono Suit Challenging Department of Labor’s Midnight Rule Changing Prevailing Wage Determinations – December 14, 2020
• District Court Enjoins DOL from Enforcing IFR Wage Rule (ITServe Alliance, Inc., et al. v. Scalia, et al., 12/3/20)
  • IT and Computer Servicing Companies Sue DOL Over New Prevailing Wage Rates (ITServe Alliance, Inc., et al. v. Scalia, et al., 10/16/20)
• District Court Sets Aside DHS and DOL H-1B Wage Rules (Chamber of Commerce, et al., v. DHS, et al., 12/1/20)
  • The Chamber and Partners File Complaint Requesting the DHS and DOL H-1B Rules Be Set Aside (Chamber of Commerce, et al., v. DHS, et al., 10/19/20)
• AILA and BOG Members Sue DOL Over New Prevailing Wage Rates (Purdue, et. al., v. Scalia, et. al., 10/19/20)
  
  • AILA Press Statement: AILA and Board of Governors’ Members File Pro Bono Suit Challenging Department of Labor’s Midnight Rule Changing Prevailing Wage Determinations - October 19, 2020
  • AILA Quicktake #296: AILA Files Lawsuit Against DOL’s Prevailing Wage Rule – October 20, 2020

Partner Resources

• National Foundation for American Policy: NFAP Policy Brief: An Analysis of the DOL H-1B Wage Rule - October 16 2020

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

Government Announcements | AILA Resources

Government Announcements

• USCIS Final Rule Delaying Effective Date of Rule Creating a Wage-Based Selection Process for H-1Bs (86 FR 8543, 2/8/21)
  
  • AILA and the Council Submit Comments on USCIS’s Decision to Delay Effective Date of the Wage-Based Selection Process for H-1Bs – March 10, 2021
• USCIS Final Rule Creating a Wage-Based Selection Process for H-1Bs (86 FR 1676, 1/8/21)
  
  • USCIS Press Release: USCIS Modifies H-1B Selection Process to Prioritize Wages – January 7, 2021
• USCIS Notice of Proposed Rulemaking Creating Wage-Based Selection Process for H-1Bs (85 FR 69236, 11/2/20)
  
  • USCIS Stakeholder Message: DHS Proposes to Replace H-1B Cap Random Selection Process with Wage-Based Selection Process – October 28, 2020
  • USCIS Press Release: DHS, Trump Administration Protect American Jobs from Unfair International Competition – October 28, 2020

AILA Resources

• Practice Alert: DHS Publishes Final Rule Creating Wage Based Selection System for Cap Subject H-1B Petitions – January 11, 2021
• AILA and Partners Submit Comments to USCIS on H-1B Wage Prioritization Proposal – December 2, 2020
• AILA Submits Supplemental Comments Regarding Requested Start Date for FY2021 H-1B Cap-Subject Petitions – December 2, 2020
• AILA and the Council Submit Comments Opposing USCIS Proposal to Create Wage-Based Selection Process for H-1Bs – December 2, 2020
• AILA Quicktake #297: New Rule Creates Wage-Based Selection Process for H-1B Visas – November 5, 2020
• Practice Alert: DHS Proposes Rule to Create Wage-Based Selection System for H-1B Cap-Subject Petitions – October 29, 2020
• AILA Press Statement: New H-1B Regulation Defies Congressional Intent and Threatens to Hurt U.S. Economy - October 29, 2020

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DOL Bulletins Revising Interpretation of Regulations Concerning LCAs

Government Announcements

• DOL Withdraws OFLC and WHD Bulletins on LCA Filing Requirements – January 20, 2021
• DOL Issues Bulletin Clarifying Filing Requirements for LCAs by Secondary Employers – January 15, 2021
• DOL WHD Issues Bulletin on H-1B Program Obligations for Common-Law Employers – January 15, 2021

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Media Resources

• Forbes: Trump Will End H-1B Visa Lottery - October 29, 2020
• Immigration Impact: Three New Lawsuits Challenge Trump’s H-1B Worker Restrictions - October 23, 2020
• Forbes: Economic Research Exposes Significant Flaws in DOL H-1B Visa Rule – October 22, 2020
• Forbes: Two More Major Lawsuits Filed Against Trump H-1B Visa Restrictions – October 20, 2020
• Inside Higher Ed: Colleges Sue Trump Administration Over H-1B Rules – October 21, 2020
• Forbes: New Lawsuit and Glaring Problems Threaten DOL H-1B Visa Rule - October 19, 2020
• Forbes: Tech Employment Data Contradict Need for Quick H-1B Visa Rules – October 13, 2020
  
  • National Foundation for American Policy: Employment Data for Computer Occupations for January to September 2020 – October 13, 2020
• Forbes: Trump Administration Issues Two New Rules to Restrict H-1B Visas - October 7, 2020

Cite as AILA Doc. No. 20100701.