H1B Prevailing wage increase and strengthening rule

Summary: The U.S. Department of Labor issued an Interim Final Rule (IFR) that will help protect the wages and job opportunities of American workers by reforming the prevailing wage methodology used by the Department in several foreign worker programs. Also, the Department of Homeland Security is strengthening the H-1B rule by narrowing the regulatory definition of and standards for a “specialty occupation.” The DOL H1B prevailing wage rule will take effect immediately upon publication on Thursday (10/8/2020), while the DHS rule will take effect on 60 days after publication (December 7th, 2020).

Update (12/4/20): USCIS sent out the newsletter on December 4, saying the following: “On December 1, the U.S. District Court for the Northern District of California vacated the Strengthening the H-1B Nonimmigrant Visa Classification Program Interim Final Rule (IFR). The Dec. 1 order prevents the IFR from taking effect, and the Department of Homeland Security, U.S. Citizenship and Immigration Services from implementing the IFR. USCIS will fully comply with the court’s decision.”

There have been 3 lawsuits against DOL or DHS interim final rules. The court in the case Chamber of Commerce et al. v. DHS et al. made judgments that block both rules from being enforced and implemented.

Contents

• Department of Labor Interim Prevailing Wage Final Rule
• What does DOL final rule mean to you
• DHS H-1B Strengthening Rule
• What does the DHS rule mean to you

Department of Labor Interim H1B Prevailing Wage Final Rule

When H-1B, H-1B1, or E-3 visa holders are hired by US companies, they need to meet the prevailing wage levels. This was to ensure that US companies don’t substitute US workers with lower-cost foreign laborers. Under the Immigration and Naturalization Act, employers must pay H-1B workers the greater of “the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question,” or “the prevailing wage level for the occupational classification in the area of employment.”*

Now, the U.S. Department of Labor announced that they are going to increase the “required wage.“ According to the DOL news release, “The IFR will improve the accuracy of prevailing wages paid to foreign workers by bringing them in line with the wages paid to similarly employed U.S. workers. This will ensure the Department more effectively protects the job opportunities and wages of American workers by removing the economic incentive to hire foreign workers on a permanent or temporary basis in the U.S over American workers.”  U.S. Secretary of Labor Eugene Scalia said “these changes will strengthen our foreign worker programs and secure American workers’ opportunities for stable, good-paying jobs.”

“The U.S. Department of Labor is strengthening wage protections, addressing abuses in these visa programs, and ensuring American workers are not undercut by cheaper foreign labor,” said U.S. Secretary of Labor Eugene Scalia. “These changes will strengthen our foreign worker programs and secure American workers’ opportunities for stable, good-paying jobs.”

U.S. DEPARTMENT OF LABOR ISSUES INTERIM FINAL RULE TO PROTECT WAGES OF AMERICAN WORKERS

What does DOL final rule mean to you

If you are currently a H-1B employee who are paid under the new prevailing wage, your salary might increase to meet the new requirement. On the other hand, if this rule gives your employer too much of financial burdens, they might limit the number of H-1B employees in the long term.

Also, if your desired profession’s medium salary is not the same as the changed H1B prevailing wage rule, it would be much difficult for international graduates to get a job.

DHS H-1B Strengthening Rule

Below is a summary of the new rule. Amongst changed rules, the first one will be discussed in the next section as it has direct impacts on students. Details on other changes can be found in the original documents. I included references at the end of the blog post for those of who would like to know more.

• Revising the regulatory definition of and standards for a “specialty occupation” to better align with the statutory definition of the term
• Adding definitions for “worksite” and “third-party worksite”
• Revising the definition of “United States employer”
• Clarifying how U.S. Citizenship and Immigration Services (USCIS) will determine whether there is an “employer-employee relationship” between the petitioner and the beneficiary
• Requiring corroborating evidence of work in a specialty occupation
• Limiting the validity period for third-party placement petitions to a maximum of 1 year
• Providing a written explanation when the petition is approved with an earlier validity period end date than requested
• Amending the general itinerary provision to clarify it does not apply to H-1B petitions
• Codifying USCIS’ H-1B site visit authority, including the potential consequences of refusing a site visit

Narrowing the definition of “special occupation”

Under the current rule, H-1B applicants should obtain at least a bachelor’s level degree or equivalent work experience to be qualified for the “special occupation” requirement. However, the new rule will allow sponsorship for H-1B employees who hold a degree that matches the job.

What does the DHS rule mean to you

If you have applied for OPT or STEM OPT, you might be familiar with OPT rules which require applicants to work that is directly related to the program of study. This new H-1B rule will ask you the same. Especially, it can be challenging for employers in the high tech and IT industries as they need to hire applicants who has the exact degree that is related to the position. For example, employers often hire information technology major graduates for a soft engineer job or someone who has 5~10 years of experience. This will not be allowed under the new rule.

As the DHS rule will take effect on December 7, 2020, the public can comment on the rules by then. To do so, please go to Federal Register webpage.

Reference

• *New H-1B Rule to Be Published on Oct. 8; Set for Immediate Effect By Andrea Godfread-Brown from Harris Beach
• H-1B eligibility and wage regulations to be published Thursday by Berry Appleman & Leiden LLP
• Strengthening the H-1B Nonimmigrant Visa Classification Program from Federal Register
• Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States from Federal Register