On October 8, 2020, the Department of Labor (“DOL”) and Department of Homeland Security (“DHS”) published new rules that will have a considerable impact on the H-1B visa program. The DOL rule substantially modifies and increases prevailing wages payable to foreign workers and limits the H-1B program to the most highly paid professionals, regardless of actual prevailing wage labor market data. The DHS rule revises or clarifies several definitions and increases the amount of evidence required in an H-1B case. The summary of the rules is set forth below.
DOL’s Rule on “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States” (“DOL Rule”)
As a rule, an employer seeking to employ foreign workers in the United States must offer the higher of (1) the actual wage paid by the employer for the job when filled by individuals with similar qualifications or (2) the prevailing wage. The employer promises to pay this required wage by submitting a Labor Condition Application (“LCA”) to the DOL. The DOL typically relies on the Occupational Employment Statistics (“OES”) annual wage survey to compute the prevailing wage.
What Does the DOL Rule Do?
The DOL Rule significantly increases the “required wage” employers must pay to H-1B, H-1B1, and E-3 non-immigrant workers, as well as EB-2 and EB-3 immigrant workers, where the underlying LCA or prevailing wage determination request is based on the OES wage survey. According to the National Foundation for American Policy, for all occupations and geographic locations, the new minimum salary that employers are required to pay under the new DOL Rule is, on average, 39% higher for Level 1 positions, 41% higher for Level 2, 43% higher for Level 3, and 45% higher for Level 4.
The DOL Rule will apply to (1) new LCAs; (2) new PERM prevailing wage requests; and (3) PERM prevailing wage requests currently under DOL review. The DOL Rule will not affect: (1) LCAs already certified by the DOL; (2) LCAs filed before October 8, 2020; or (3) already issued PERM prevailing wage determinations. This means that employers may continue paying an H‑1B employee their current salary pursuant to the certified LCA, but could be required to considerably increase such employee’s salary the next time they need to submit an H-1B extension and apply for a new LCA.
Importantly, the DOL Rule does not prevent employers from using, in lieu of the OES wage data, an alternative wage survey or other acceptable methodology that meets regulatory requirements for H-1B, H-1B1, E-3, or PERM cases. Given the above, we expect that many employers will resort to the use of alternative wage surveys for their H-1B and PERM filings. A wage survey from an alternate source (i.e., an employer-conducted survey, a commissioned survey or a published/commercial survey) may offer a solution because such surveys frequently have a broader range of occupations, as well as salary levels that are more in-line with the real-world conditions of employers. Although obtaining an alternative wage survey may slow the H‑1B or PERM sponsorship process in general, it will likely result in obtaining more accurate prevailing wage data.
The DOL Rule went into effect on the date of publication, October 8, 2020. Several lawsuits have been filed seeking to enjoin or vacate the DOL Rule.
DHS’s Rule on “Strengthening the H-1B Nonimmigrant Visa Classification Program” (“DHS Rule”)
Under the DHS Rule, USCIS will be adjudicating H-1B petitions with a stricter scrutiny to confirm that the offered position precisely meets the H-1B employee’s qualifications and complies with other additional requirements, particularly, as set forth below.
What Does the DHS Rule Do?
Changes to the Specialty Occupation Definition
Changes to “Worksite” and “Third Party Worksite” Definitions
The DHS Rule is scheduled to take effect on December 7, 2020. On October 19, 2020, the U.S. Chamber of Commerce, along with several other organizations and universities filed a complaint against the DHS and DOL Rules seeking to vacate both Rules and enjoin DOL and DHS from enforcing these Rules.
The Bousquet Holstein immigration group is closely monitoring these developments and will provide updates on these important issues.
For questions and/or additional information, please contact:
Anna Putintseva · email@example.com · 315.701.6372