News & Insights
Big Changes ahead for employment visas and H-1Bs: Why Now is the Time to Go Forward
There are many new developments regarding visa issuance and changes to H-1Bs. Some of these changes will not become effective as originally put forward, but they may be implemented in a slightly different form making 2021 a good year to go forward with any anticipated H-1B needs.
Update on Presidential Proclamations 10014 and 10052
Presidential proclamations from April and June of 2020, prohibiting visa issuance for many types of visas, had expired December 31, 2020. Those proclamations have now been extended through March 2021. It is important to bear in mind that there are broad exemptions from these two proclamations. See our earlier post: Presidential Proclamation Suspending Entry/Admission to the U.S.
Updates on Department of Labor and Department of Homeland Security Interim Final Rules Affecting H-1Bs
On October 8, 2020, the Department of Labor (DOL) published an interim final rule titled Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States. This rule purports to change how DOL computes wage rates when using Occupational Employment Statistics (OES) wage data to make a prevailing wage determination or to certify a Labor Condition Application that relies on OES wage data as part of an H-1B petition.
Every H-1B employer is required to pay either the prevailing wage for that geographical location (Metropolitan Statistical Area) or the actual wage paid to its workers in the same occupation, whichever is higher. This new rule raising the amount of the prevailing wage was to take immediate effect resulting in significantly higher prevailing wage determinations using OES wage data. Under certain limited circumstances, an employer may use a different wage survey, but the OES wage data is the standard for H-1B petitions.
Also, on October 8, 2020, the Department of Homeland Security (DHS) published an interim final rule titled Strengthening the H-1B Nonimmigrant Visa Classification Program. This rule purported to change the definition of specialty occupation for H-1B status and amend the educational criteria to qualify for a specialty occupation. It also created new requirements for third-party placement work locations and contractor H-1Bs, and it intended to strengthen the requirements to prove a bona fide job offer of non-speculative employment exists. It was to become effective automatically on December 7, 2020.
However, on December 1, 2020, the U.S. District Court for the Northern District of California issued a nationwide block of both of the above rules from becoming effective or being enforced. The court based its ruling on a finding that the agencies did need to comply with notice and comment periods, which they had not done. In separate court actions, but for similar reasons, the U.S. District Court for the District of Columbia ordered the DOL to “reissue any prevailing wage determinations” issued under the DOL interim final rule, and the U.S. District Court for New Jersey issued a ruling prohibiting DOL from enforcing its interim final rule.
As a result of these court rulings, the DOL rule is no longer in effect and the DHS rule never went into effect. The OES wage data, that was in effect prior to October 8, 2020, is in effect once again. Prevailing Wage requests that were submitted while the DOL rule was in place and remain pending, and those that have been submitted or will be submitted after December 1, 2020, will be determined based on the wage levels that were in effect prior to October 8, 2020 and which are again in effect now. Labor Condition Applications submitted using the higher wage rates in effect from October 8 to December 3, 2020, cannot be corrected and the higher wage rates will be the controlling factors.
It is important to note that the reason the courts blocked these rules is procedural. The government did not comply with required time periods to provide notice of the changes and to accept comments about the changes. As such, these or similar rules may surface again if the government first complies with the required procedures.
New Final Rule Changing H-1B Selection Method Issued January 7, 2021
On January 7,2021, the government issued a final rule changing the H-1B selection process from a “random” selection – also known as the H-1B “lottery” – to a wage-based selection system. The new system would select those potential H-1B petitions that offer the highest wage for a particular occupational code (SOC code). Selecting only those that offer the highest wage is highly problematic for many types of organizations including small businesses, non-profits, government and quasi-government organizations, public schools, and employers subject to collective bargaining agreements.
This rule is set to take effect 60 days from publication in the federal register. However, the incoming administration has stated it intends to issue a memo during its first week, stating that any rule published but not yet implemented (like this H1B selection rule) will automatically be extended an additional 60 days beyond the original effective date. This extension of time will give the new administration an opportunity to review the details of the rule.
As a result, it will be too late for the new rule to apply to the 2021 H-1B selection process. That means this year is an excellent opportunity to file H-1B petitions under the current fairer selection process.
President-elect Biden also supports a wage-based H-1B selection system, according to statements on his website. We will provide you with a more detailed analysis in an upcoming post. Please watch for an updated post discussing how a wage-based system may work, why the government is interested in it, and how it will affect employers.
U.S. Department of Labor Raises H-1B Wages—Again
On January 12, 2021, the U.S. Dept. of Labor (DOL) again announced it would raise the required wage rates for foreign workers on high-skilled visas and stated the new rule will be phased in over time. This is another attempt to raise the wages after the rule issued in October was enjoined by the courts.
So Here’s Where We Are:
Repeated attempts are being made to increase the wages required to be paid to H-1B workers, as well as to re-define basic long-established concepts, including what constitutes a “specialty occupation” and what educational requirements must be met to qualify.
Up to now those efforts have not complied with law and have been temporarily (only) blocked by the courts or are expected to be delayed by the incoming administration pending their review.
Nevertheless, on January 12, 2020, DOL again stated that it was raising the wages required to be paid.
It appears these efforts likely will not become effective for this year’s H-1B selection, making this a very good time for any employer contemplating the need for additional skilled workers to proceed. H-1B visas may be issued for three years, are renewable for another three years, and under certain circumstances can be extended beyond that giving employers years to benefit from the H-1B workers.
Being fully aware of what is happening in this arena is critically important. If you have any questions please contact Barbara A. Marcouiller, Attorney, at (425) 990.4030 or firstname.lastname@example.org.
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