U.S. Dept. of Labor & Dept. of Homeland Security Release New Rules on H-1B, E-3, and PERM

UPDATE (December 14, 2020): A federal district court in the District of Columbia today set aside a fast-track Department of Labor regulation that significantly restructured the prevailing wage system for the H-1B, E-3 and H-1B1 nonimmigrant programs and PERM labor certification. The district court is the third to rule against the regulation in recent weeks.

The decision comes in a pair of consolidated lawsuits filed by universities and business groups challenging the Department of Labor’s October 8, 2020 release of an interim final regulation (IFR) that resulted in significantly higher government prevailing wage minimums for foreign professional workers.  As an IFR, the rule took effect before public comments were considered. DOL justified expedited review and implementation of the rules on the grounds that expedited implementation was necessary to support U.S. workers amid the economic impact of the COVID-19 emergency. The court rejected DOL’s rationale, finding that it did not have good cause to bypass public notice and comment, thus violating the Administrative Procedures Act. 

UPDATE (December 1, 2020): A federal district court in California has set aside two new immigration regulations that were promulgated on a fast track by the Departments of Labor (DOL) and Homeland Security (DHS) in early October. Ruling on summary judgment, the court found that the agencies did not have good cause to bypass notice and comment rulemaking procedures in violation of the Administrative Procedures Act. 

This ruling immediately invalidates the rules; however, the government is expected to appeal the decision in an expedited manner. 

ORIGINAL MESSAGE (October 8, 2020): The U.S. Department of Labor and U.S. Department of Homeland Security released interim final rules on October 8, 2020, outlining changes to the prevailing wage process and narrowing eligibility criteria for certain employment-based visa categories.

Dept. of Labor (DOL) Rule: Strengthening Wage Protections for the Temporary and Permanent Employment of Certain

Publication Date: 10/08/2020 - 150 Pages Permalink 

Interim final rule effective on the day of publication (10/08/20), with concurrent 30-day comment period

DOL Summary: "The Department of Labor (DOL) is amending Employment and Training Administration (ETA) regulations governing the prevailing wages for employment opportunities that United States (U.S.) employers seek to fill with foreign workers on a permanent or temporary basis through certain employment-based immigrant visas or through H-1B, H-1B1, or E-3 nonimmigrant visas. Specifically, DOL is amending its regulations governing permanent labor certifications and Labor Condition Applications (LCAs) to incorporate changes to the computation of wage levels under the Department's four-tiered wage structure based on the Occupational Employment Statistics (OES) wage survey administered by the Bureau of Labor Statistics (BLS). The primary purpose of these changes is to update the computation of prevailing wage levels under the existing four-tier wage structure to better reflect the actual wages earned by U.S. workers similarly employed to foreign workers. This update will allow DOL to more effectively ensure that the employment of immigrant and nonimmigrant workers admitted or otherwise provided status through the above-referenced programs does not adversely affect the wages and job opportunities of U.S. workers."

Dept. of Homeland Security (DHS) Rule: Strengthening the H-1B Nonimmigrant Visa Classification Program

Publication Date: 10/08/2020 - 147 Pages Permalink 

Interim final rule effective 60 days after publication, with concurrent 30-day comment period.

DHS Summary: "The Department of Homeland Security (DHS), is amending certain DHS regulations governing the H-1B nonimmigrant visa program. Specifically, DHS is: 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; and codifying USCIS' H-1B site visit authority, including the potential consequences of refusing a site visit. The primary purpose of these changes is to better ensure that each H-1B nonimmigrant worker (H-1B worker) will be working for a qualified employer in a job that meets the statutory definition of a "specialty occupation." 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."

Press releases from White House, DHS, and DOL:

Additional analysis and information:

The University is closely tracking these developments and analyzing both rules. We will share additional information as it becomes available.