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Earlier this year the Administration instructed DOL and DHS to make it harder for U.S. employers to hire international personnel. In response, on October 8, DOL and DHS are issuing new regulations, link to them is here.
BOTTOM LINE:
Most of it is politically motivated pre-election attention grabbing nonsense, which works to generate headlines - see Forbes article here: LINK. All of these regulations will be challenged in court and may not come into effect. Most of these won’t affect our clients’ H-1B employment because (1) our clients already pay higher then prevailing wage anyway; (2) our clients’ degree requirements are not general, and (3) Most of our clients don’t place employees on client sites. However, in cases where third party placement is done, better planning is needed. And we may need to think about onboarding contractors to avoid business interruption
Specifically:
DOL to ISSUE HIGHER PREVAILING WAGES
What it is: This DOL interim rule changes the prevailing wage calculation and increases the wages required to be paid for H-1B workers 45% or to the 45th percentile of the wage distribution for each occupation.
When it takes effect: Thursday, October 8, 2020, immediately effective.
What to expect: This rule does not affect certified LCAs. It does not affect issued prevailing wage determinations. It does not affect pending LCAs. It will affect any pending prevailing wage applications. It will likely be challenged in Federal court due to lack of due process. Attorneys will likely argue that DOL did not have “good cause” in avoiding the notice and comment period which is required before promulgating regulations.
Recommended Action: Sit tight. We don’t know the gap in wages (if any) at this point, and will have to address it on a case-by-case basis as we begin filing H-1B transfers/extensions for your business.
USCIS to NARROW DOWN ACCEPTABLE DEGREES
What it is: This interim rule says that the educational requirement must be directly related to the duties of the position, not just related. The rule states you cannot ask for a general degree, such as “engineering” vs “software engineering”. The rule takes out language such as “normally required”, “common”, or “usually”, and reinforces the strict interpretation of the regulation. The rule replaces the word “position” with “ occupation”, and employers will be required to prove the minimum requirement is the same for the occupation as a whole, not just the employers unique position. Our clients already do that so for us, this is business as usual.
When it takes effect: 12/7/2020, 60 Days from Publication (10/8/20)
What to expect: We feel this regulation will likely be challenged in Federal court due to the lack of DHS authority to implement these regulations, using the same logic used to strike down the fee rule.
Recommended Action: Continue to stick to specific degree (or equivalent) requirements when hiring.
USCIS to MAKE IT MORE DIFFICULT TO PLACE EMPLOYEES on CLIENT SITES
What it is: This interim rule creates restrictive measures on third-party placement employer, DHS will change employee-employer relationships involving placing employees at client’s site. hen employers place workers at a client’s site, they will only be eligible for 1 year H-1Bs.
When it takes effect: 12/7/2020, 60 Days from Publication (10/8/20)
What to expect: Will likely be challenged in Federal court due to the lack of DHS authority to implement these regulations, using the same logic used to strike down the fee rule.
Recommended Action: No action needed now. We will take this case-by-base as we work with clients on any worksite placement H-1Bs.
USCIS to DO MORE SITE VISITS:
What it is: This rule increases the amount and “codifies” the authority of the site visits by USCIS. In 2008, there were 246 site visits, in 2018-2019 there were 20,000+ site visits.
When it takes effect: 12/7/2020, 60 Days from Publication (10/8/20)
What to expect: Will likely be challenged in Federal court due to the lack of DHS authority to implement these regulations, using the same logic used to strike down the fee rule. We expect more site visits to occur.
Recommended Action: Employers should engage in annual Public Access File audits, correction, and training and adhere to H-1B LCA-certified labor conditions.
These regulations will likely be challenged in federal court, which will result in an injunction. We understand the fear and concern at this time. In practice, it will be business as usual for our clients who already meet and exceed these standards as dictated by the labor market itself.
Mira Mdivani
Business Immigration Attorney MDIVANI CORPORATE IMMIGRATION LAW FIRM
Danielle Atchison
Business Immigration Attorney MDIVANI CORPORATE IMMIGRATION LAW FIRM
NOT LEGAL ADVICE: This article is for educational purposes only, it is not legal advice that may be applicable to our situation
The information provided here does not constitute legal advice. It is general information regarding law and policy that may be applicable to your particular HR issue or legal problem. Information provided in this blog, or any of our other public posts, does not create an attorney-client relationship. For specific advice you can rely upon, please contact your attorney.