H-1B Overhaul

On Behalf of | Oct 16, 2020 | Immigration Law

It was recently announced that the administration will be making some significant changes to the H-1B visa program.

What are the new DHS and DOL rules all about?

The Department Homeland Security (DHS) and the Department of Labor (DOL) just announced a pair of rules affecting H-1B visas. DHS is generally looking to narrow the scope of H-1B visas by making eligibility more difficult, while DOL is raising the minimum salary requirements for the visas.

When do these overhauls take effect?

The DHS rule will take effect 60 days from publication, or December 7, 2020. The DOL rule is currently in effect, since October 8, 2020.

What do the DOL changes say?

The DOL is increasing prevailing wages, stating that they want to “preserve jobs for American workers.” They use a 4-tiered approach in determining prevailing wages, starting from entry-level employees and going to more experienced.. To reflect these changes, they are raising these tiers from the 17th, 34th, 50th, and 67th percentiles to the 45th, 62nd, 78th, and 95th percentiles, respectively. The end result is that, if these wage changes are permitted to stand, it will become more costly to employ H-1B professionals.

What do the USCIS changes say?

DHS is trying to “strengthen the integrity of the H-1B program” by narrowing its scope. The rule will:

  • Narrow the definition of specialty occupation
  • Shorten the possible length of approval for petitions filed for employees based at third party sites
  • Require a stronger showing of the exercise of employer control over the employee (again, directed at third party worksite employees)
  • Enhance DHS’s ability to enforce compliance through worksite inspections and monitor compliance before, during and after an H-1B petition is approved.”

What does this mean for pending cases?

DHS has stated that these new rules will not affect pending cases. The DOL will apply the rule “to applications for prevailing wage determination pending with the National Prevailing Wage Center (NPWC) as of the effective date of the regulation; applications for prevailing wage determinations filed with the NPWC on or after the effective date of the regulation; and LCAs filed with the Department on or after the effective date of the regulation where the OES survey data is the prevailing wage source, and where the employer did not obtain the PWD from the NPWC prior to the effective date of the regulation.”

What does this mean for approved cases?

Both departments have stated the new rules have no bearing on previously approved cases.

What about cases that have not yet been filed?

All cases filed from this point forward must comply with the DOL rule, as it went into effect on October 8, 2020. The means petitioners must meet the higher prevailing wage standards for all future petitions. DHS has stated that their rule will “apply to petitions filed on or after the effective date of the regulation,” or December 7, 2020.

Is there any chance that these new rules will be struck down? It is anticipated that there will be federal litigation regarding both the DOL and DHS rules. Recently, the DHS / USCIS proposed filing fee changes were halted through an injunction while litigation proceeds, so something similar very well could happen here. Only time will tell.