The US Department of Labor (DOL) and Department of Homeland Security (DHS) issued interim final rules amending the regulations governing permanent labor certifications and Labor Condition Applications (LCAs) to incorporate changes to the computation of prevailing wage levels. Together, these rules make significant changes to the requirements for the H-1B program.
DOL Interim Final Rule
The DOL Interim Final Rule (DOL IFR) which became effective on October 8, 2020 will result in significantly higher prevailing wages required for certain visas, including H-1B.
The DOL’s occupational employment statistics (OES) wage data is used to determine the prevailing wage for H-1B non-immigrant workers, who, as a general rule, are required to be paid the higher of the prevailing wage or the rate paid by the employer to other employees in the position with similar experience and qualifications.
The DOL IFR will not impact LCAs already certified by the DOL (LCAs filed before October 8 or already assigned PERM prevailing wage determinations). This means an employer may continue to pay a worker their current salary, as listed on the certified LCA, but could face the requirement to significantly increase that employee’s salary the next time they need to file an H-1B extension and obtain a new LCA.
DHS Interim Final Rule
The Department of Homeland Security (DHS) interim final rule Strengthening of the H-1B Nonimmigrant Visa Classification Program becomes effective December 7, 2020. The DHS IFR amends existing regulations by limiting certain key definitions and shortening validity periods for H-1B workers.
The new rule will among other things:
- Require corroborating evidence of work in a specialty occupation that petitioners show that a specific bachelor’s degree is always (formerly normally) a requirement for the position; and
- Limit the validity period for third-party placement H-1B petitions to one year (formerly three years), resulting in more frequent renewals and increased uncertainty.
Next Steps for Employers
Under the DHS IFR, employers should expect increased scrutiny of H-1B petitions, especially in cases where a variety of degree fields are acceptable preparation for the occupation.
Both rules (DOL IFR and DHS IFR) are likely to be met with legal challenges, but in the interim, employers should be sure to consult with immigration counsel regarding the impact of these rules on their foreign national workers.
