New H1-B Visa Rules

On October 8, 2020 the US Department of Labor (DOL) and the US Department of Homeland Security (DHS) issued Interim Final Rules relating to certain employment-based visas.  The DOL rule was effective on the day of publication (10/08/20), although DOL is accepting comments from the public for 30 days (until 11/09/2020). The DHS rule is effective 60 days after the publication date (10/08/20), with concurrent 30-day comment period.

Summary

DOL has amended regulations governing prevailing wage determinations for employment-based visas such as H-1B or PERM Labor Certifications. DOL argues that the amended regulations allow them to more effectively ensure that the employment of immigrant and nonimmigrant workers does not adversely affect the wages and job opportunities of U.S. workers. DOL’s amended regulations change the computation of wage levels, dramatically increasing minimum wage requirements.

DOL’s new prevailing wage level requirements will impact employers’ ability to sponsor H-1Bs especially for non-faculty positions. H-1B petitions that have already been filed with USCIS or already prepared using the wage data that was available before October 8 are not impacted.  Future petitions including extensions of status will be impacted.

In the coming days, we anticipate substantial advocacy against the DOL rule. We also expect lawsuits that try to stop or delay the implementation of the DOL rule. 

DHS is also amending its regulations governing the H-1B nonimmigrant visa program. DHS is revising the regulatory definition and standards for a "specialty occupation" to (they argue) better align with the statutory definition of the term. "These changes are urgently necessary to strengthen the integrity of the H-1B program during the economic crisis caused by the COVID-19 public health emergency to more effectively ensure that the employment of H-1B workers will not have an adverse impact on the wages and working conditions of similarly employed U.S. workers. In addition, in strengthening the integrity of the H-1B program, these changes will aid the program in functioning more effectively and efficiently."    

The DHS rule will likely lead to more H-1B processing delays and denials. We also anticipate advocacy in response to the new DHS regulations.

Resources

DOL rule: 150 Pages (public inspection version)  Permalink

DOL FAQs: Permalink

Summary of the DOL rule by the Association of International Educators: Permalink

DHS rule: 147 Pages (public inspection version)  Permalink

Press releases from WH, DHS, and DOL:

Forbes Article: Trump Administration Issues Two New Rules To Restrict H-1B Visas: Permalink


The office of International Services will host a virtual town hall on Thursday, October 15, 2020, 12:00 to 1:15 PM to discuss the new rules and their impact. Contact Loveness Schafer at lschaf2@lsu.edu for more information.