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Featured Issue: DHS and DOL Rules Altering the H-1B Process and Prevailing Wage Levels

9/16/21 AILA Doc. No. 20100701. Business Immigration, H-1B & H-1B1 Specialty Occupation, Labor Certification (Permanent)

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Current State of Play

September 15, 2021 – in Chamber of Commerce, et al. v. DHS, et al., the U.S. District Court for the Northern District of California vacated the January 8, 2021, DHS final rule entitled “Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject H-1B Petitions” because Chad Wolf was not lawfully appointed as Acting DHS Secretary at the time that DHS promulgated the rule.

June 29, 2021 - DOL announced via its website that in light of the federal district court's ruling on June 23, 2021, vacating the DOL Final Wage Rule, the operative version of the regulations at 20 CFR 656.40 and 20 CFR 655.731 continues to be the version in place on October 7, 2020.

On February 8, 2021, USCIS published a final rule delaying the effective date of the rule creating a wage-based selection process for H-1Bs to December 31, 2021.

Background

In October 2020, DHS issued the Strengthening the H-1B Nonimmigrant Visa Classification Program Interim Final Rule revising the definition of "Specialty Occupation" and DOL issued the Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States Interim Final Rule, amending the regulations governing permanent labor certifications and Labor Condition Applications to incorporate changes to the computation of prevailing wage levels. Together, these rules upend decades of requirements for the H-1B program.

Read the DHS IFR Read the DOL IFR

The DHS IFR, Strengthening the H-1B Nonimmigrant Visa Classification Program Interim Final Rule, was published in the Federal Register on October 8, 2020. The IFR is effective December 7, 2020. Comments on the IFR are due December 7, 2020, with comments on associated form revisions due November 9, 2020.

The DOL IFR, Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States, was also published in the Federal Register on October 8, 2020. The IFR is effective October 8, 2020, with comments due November 9, 2020.

On November 2, 2020, USCIS published another proposed rule entitled Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject H-1B Petitions that will dramatically alter the way in which H-1B registrations are selected for the annual H-1B statutory cap, as established by Congress. The proposed rule seeks to replace the current random selection process with a new wage-based selection process which would prioritize the selection of H-1B registrations based on employers who pay the highest wages. Comments on the proposed rule are due 12/2/20, with comments on associated form revisions due 1/4/21.

AILA Press Statement: Sweeping Changes Will Alter H-1B Process and Harm American Businesses - October 7, 2020
Practice Alert: Forthcoming Regulations Would Fundamentally Impact the H-1B Visa Program and Prevailing Wage Levels
Media Resources

Find out more about these policies:

Strengthening the H-1B Nonimmigrant Visa Classification Program Interim Final Rule (DHS)

Government Announcements | AILA Resources | Litigation

Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States (DOL)

Government Announcements | AILA Resources | Litigation | Partner Resources

Government Announcements

DOL Delay of Effective Date of Final Rule on Computation of Prevailing Wage Levels (86 FR 13995, 3/12/21)
DOL Proposed Delay of Effective Date of Final Rule on Computation of Prevailing Wage Levels (86 FR 7656, 2/1/21)
OFLC Announces Plan for Reissuing Certain Prevailing Wage Determinations Issued Under DOL’s Prevailing Wage Rule – January 22, 2021
DOL Final Rule on Computation of Prevailing Wage Levels (86 FR 3608, 1/14/21)
- DOL Press Release: U.S. Department of Labor Issues Final Rule to Reform Prevailing Wages for Foreign Worker Programs to Prevent Potential Abuses – January 12, 2021
OFLC Announces Updates to Implementation of Prevailing Wage Rule in Response to District Court Orders – December 3, 2020
DOL Interim Final Rule on Computation of Prevailing Wage Levels (85 FR 63872, 10/8/20)
- DOL Issues Round Two of FAQs on Interim Final Rule on Computation of Prevailing Wage Levels – October 29, 2020
- DOL Issues Implementation FAQs on Interim Final Rule on Computation of Prevailing Wage Levels - October 6, 2020
- DOL Press Release: U.S. Department of Labor Issues Interim Final Rule to Protect Wages of American Workers – October 6, 2020
- DOL OFLC Announcement: U.S. Department of Labor Updates Regulations for Wages Paid to Certain Immigrant and Nonimmigrant Foreign Workers and Better Protect the Wages and Job Opportunities of United States Workers - October 6, 2020. Per DOL OFLC:
  
  Implementation Schedule:
  - On October 8, 2020, employers and their authorized attorneys or agents will be able to:
    - Access revised OES prevailing wage data for each SOC and area of intended employment at https://www.flcdatacenter.com/;
    - Use the Foreign Labor Application Gateway (FLAG) system to submit LCAs at https://flag.dol.gov/; and
    - Continue to submit requests for prevailing wage determinations using the FLAG system.
  - On October 13, 2020, the NPWC will begin issuing prevailing wage determinations using the revised OES prevailing wage data computed for the Interim Final Rule. This brief delay in issuing wage determinations is necessary to complete the required technical changes to the FLAG system's internal prevailing wage determination module and reduce the risk of unintended system problems or errors that may impact customers and OFLC staff.
  - OFLC will continue to issue non-OES based prevailing wages (e.g. employer-provided surveys or collective bargaining agreements) without delay.
DOL Issues Implementation FAQs on Interim Final Rule on Computation of Prevailing Wage Levels - October 6, 2020

AILA Resources

Practice Alert: AILA DOL Liaison Committee Follows Up with DOL Concerning DOL Wage Rule Set Aside by District Court – December 2, 2020
AILA Submits Comments on DOL's Interim Final Rule on Computation of Prevailing Wage Levels - November 9, 2020
Practice Pointer: Roadmap to Alternative Wage Surveys for LCAs and PWDs – October 30, 2020
Practice Pointer: Proceed with Caution - Using Less Common SOC Occupations in O*NET – October 21, 2020
Practice Alert: DOL Interim Final Rule Advance Copy Indicates Changes to Computation of Prevailing Wage Effective October 8, 2020 - October 8, 2020

Litigation

District Court Orders DOL to Reissue Prevailing Wage Determinations (Purdue University, et al., v. Scalia, et al., 12/14/20)
- AILA Press Statement: Big Win on Pro Bono Suit Challenging Department of Labor’s Midnight Rule Changing Prevailing Wage Determinations – December 14, 2020
District Court Enjoins DOL from Enforcing IFR Wage Rule (ITServe Alliance, Inc., et al. v. Scalia, et al., 12/3/20)
- IT and Computer Servicing Companies Sue DOL Over New Prevailing Wage Rates (ITServe Alliance, Inc., et al. v. Scalia, et al., 10/16/20)
District Court Sets Aside DHS and DOL H-1B Wage Rules (Chamber of Commerce, et al., v. DHS, et al., 12/1/20)
- The Chamber and Partners File Complaint Requesting the DHS and DOL H-1B Rules Be Set Aside (Chamber of Commerce, et al., v. DHS, et al., 10/19/20)
AILA and BOG Members Sue DOL Over New Prevailing Wage Rates (Purdue, et. al., v. Scalia, et. al., 10/19/20)
- AILA Press Statement: AILA and Board of Governors’ Members File Pro Bono Suit Challenging Department of Labor’s Midnight Rule Changing Prevailing Wage Determinations - October 19, 2020
- AILA Quicktake #296: AILA Files Lawsuit Against DOL’s Prevailing Wage Rule – October 20, 2020

Partner Resources

National Foundation for American Policy: NFAP Policy Brief: An Analysis of the DOL H-1B Wage Rule - October 16 2020

Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject H-1B Petitions (USCIS)

Government Announcements | AILA Resources

Government Announcements

USCIS Final Rule Delaying Effective Date of Rule Creating a Wage-Based Selection Process for H-1Bs (86 FR 8543, 2/8/21)
- AILA and the Council Submit Comments on USCIS’s Decision to Delay Effective Date of the Wage-Based Selection Process for H-1Bs – March 10, 2021
USCIS Final Rule Creating a Wage-Based Selection Process for H-1Bs (86 FR 1676, 1/8/21)
- USCIS Press Release: USCIS Modifies H-1B Selection Process to Prioritize Wages – January 7, 2021
USCIS Notice of Proposed Rulemaking Creating Wage-Based Selection Process for H-1Bs (85 FR 69236, 11/2/20)
- USCIS Stakeholder Message: DHS Proposes to Replace H-1B Cap Random Selection Process with Wage-Based Selection Process – October 28, 2020
- USCIS Press Release: DHS, Trump Administration Protect American Jobs from Unfair International Competition – October 28, 2020

Litigation

AILA and BOG Members Sue DHS to Block Rule Creating a Wage-Based Selection Process for H-1Bs (Humane Society of New York, et al. v. Mayorkas, et al., 5/17/21)
- AILA Press Statement: AILA and Members of AILA’s Board of Governors File Complaint to Block H-1B Lottery Rule – May 17, 2021

AILA Resources

AILA and Partners Submit Comments to USCIS on H-1B Wage Prioritization Proposal – December 2, 2020
AILA Submits Supplemental Comments Regarding Requested Start Date for FY2021 H-1B Cap-Subject Petitions – December 2, 2020
AILA and the Council Submit Comments Opposing USCIS Proposal to Create Wage-Based Selection Process for H-1Bs – December 2, 2020
AILA Quicktake #297: New Rule Creates Wage-Based Selection Process for H-1B Visas – November 5, 2020
Practice Alert: DHS Proposes Rule to Create Wage-Based Selection System for H-1B Cap-Subject Petitions – October 29, 2020
AILA Press Statement: New H-1B Regulation Defies Congressional Intent and Threatens to Hurt U.S. Economy - October 29, 2020

DOL Bulletins Revising Interpretation of Regulations Concerning LCAs

Government Announcements

DOL Withdraws OFLC and WHD Bulletins on LCA Filing Requirements – January 20, 2021
DOL Issues Bulletin Clarifying Filing Requirements for LCAs by Secondary Employers – January 15, 2021
DOL WHD Issues Bulletin on H-1B Program Obligations for Common-Law Employers – January 15, 2021

Media Resources

Forbes: Trump Will End H-1B Visa Lottery - October 29, 2020
Immigration Impact: Three New Lawsuits Challenge Trump’s H-1B Worker Restrictions - October 23, 2020
Forbes: Economic Research Exposes Significant Flaws in DOL H-1B Visa Rule – October 22, 2020
Forbes: Two More Major Lawsuits Filed Against Trump H-1B Visa Restrictions – October 20, 2020
Inside Higher Ed: Colleges Sue Trump Administration Over H-1B Rules – October 21, 2020
Forbes: New Lawsuit and Glaring Problems Threaten DOL H-1B Visa Rule - October 19, 2020
Forbes: Tech Employment Data Contradict Need for Quick H-1B Visa Rules – October 13, 2020
- National Foundation for American Policy: Employment Data for Computer Occupations for January to September 2020 – October 13, 2020
Forbes: Trump Administration Issues Two New Rules to Restrict H-1B Visas - October 7, 2020