October 07, 2020

New DOL DHS Rules to change H-1B Process and Prevailing Wage levels

This message is meant only for those clients who have either an H-1B, H-1B1, E-3 or PERM matter with our firm. This information may impact any upcoming filings in those categories. If that does not apply to you, you may ignore this message.

New rules implemented by the Department of Labor (DOL) and by the Department of Homeland Security (DHS) will significantly impact prevailing wage levels and the H-1B visa process. Both rules will be published in the Federal Register on October 8, 2020. The DOL rule will become effective on the date of publication while the DHS rule will become effective 60 days after publication.

The DOL rule will amend regulations governing permanent labor certifications and labor condition applications (LCAs) by changing how prevailing wage levels are calculated, which will result in higher prevailing wages for all occupations where the OES survey data is the prevailing wage source. The new rule will only apply to pending or new applications for prevailing wage determination and new LCAs filed on or after October 8, 2020. The new rule will not apply to any previously approved prevailing wage determinations, permanent labor certification applications, or LCAs. The DOL rule will result in higher wages for positions associated with H-1B, H-1B1 and E-3 benefit requests as well as employment-based immigration visa petitions that rely on OES-based prevailing wage determinations.

The DHS rule will amend the criteria for specialty occupation positions in the H-1B context, among other changes. The DHS rule will include the following changes:

  • Petitioners will have to establish that the bachelor’s degree in a specific specialty or its equivalent is a minimum requirement by showing that this is always the requirement for the occupation as a whole, the occupational requirement within the relevant industry, the petitioner’s particularized requirement, or because the position is so specialized, complex or unique that it is necessarily required to perform the duties of the specific position.
  • For third-party worksite placements (where the beneficiary will work at end-client locations or, for example, a physician who will work for a private practice group at a hospital or other medical facility), DHS will require the petitioner to submit evidence such as contracts, work orders, or other similar evidence to establish that the beneficiary will perform services in a specialty occupation and that the petitioner will have an employer-employee relationship with the beneficiary.
  • The beneficiary’s worksite will be considered a relevant factor when determining whether an employer-employee relationship exists.
  • Third-party placement petitions will be limited to a maximum period of a year.
  • The definition of “employer-employee relationship” will be revised and will include a list of 11 factors that USCIS will consider when determining whether there is an employer-employee relationship between the petitioner and the beneficiary.

Because both rules are expected to significantly alter the interpretation of how H-1B cases have been handled to date, litigation over both rules is expected over the next few weeks and months.

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