DOL Issues Interim Final Rule Raising Prevailing Wages
for Foreign Workers
The Department of Labor (DOL) issued an interim final rule on
October 8, 2020, amending Employment and Training Administration
(ETA) regulations governing prevailing wages for nonimmigrant H-1B,
H-1B1, and E-3 foreign workers and immigrant EB-2 and EB-3 and
foreign workers. Specifically, DOL is increasing prevailing wages
by changing their computation under the existing four-tier wage
structure.
The agency said the changes are intended 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."
According to DOL's Office of Foreign Labor Certification
(OFLC), the interim final rule will apply to:
- Applications for Prevailing Wage Determination, Form ETA-9141, pending with OFLC's National Prevailing Wage Center (NPWC) as of the effective date of the regulation;
- Applications for Prevailing Wage Determination, Form ETA-9141, filed with the NPWC on or after the effective date of the regulation; and
- Labor Condition Applications for Nonimmigrant Workers (LCA), Form ETA-9035/9035E, filed with OFLC on or after the effective date of the regulation where the Occupational Employment Statistics survey data is the prevailing wage source, and where the employer did not obtain the prevailing wage determination from the NPWC before the effective date of the regulation.
According to some practitioners and analysts, there was
insufficient time for public comment, as the rule was effective
immediately, and the DOL's methodology inflates the prevailing
wage. As a result of prevailing wage inflation, the rule is likely
to have an adverse effect on U.S. employers, especially
cost-sensitive entities like nonprofits, universities, hospitals,
start-ups, and small businesses. The rule and other recent
anti-H-1B actions are also likely to push some employers and
foreign workers to relocate to other countries.
Litigation is expected. Although the rule is effective
immediately, comments may be submitted until November 9,
2020.
Details: DOL interim final rule, https://www.govinfo.gov/content/pkg/FR-2020-10-08/pdf/2020-22132.pdf;
OFLC notice, https://www.dol.gov/agencies/eta/foreign-labor;
"Featured Issue: DHS and DOL Rules Altering the H-1B Process
and Prevailing Wage Levels" (data collection form for
potential plaintiffs), https://www.aila.org/advo-media/issues/all/dhs-dol-rules-alterning-h1b-prevailing-wage-levels;
"DOL's H-1B Wage Rule Massively Understates Wage Increases
by Up to 26 Percent," https://www.cato.org/blog/dols-h-1b-wage-rule-massively-understates-wage-increases-26
; "The New Minimum Salaries in Finance and Tech for H-1B
Visas," efinancialcareers, https://news.efinancialcareers.com/us-en/3004591/h1b-visas-finance-tech-minimum-pay;
"Trump Administration Issues Two New Rules To Restrict H-1B
Visas," Forbes, https://www.forbes.com/sites/stuartanderson/2020/10/07/trump-administration-issues-two-new-rules-to-restrict-h-1b-visas/#22e044835120;
"Big Tech's Fight for High-Skilled Visa Holders,"
Axios, https://www.axios.com/big-tech-fight-high-skilled-visa-holders-c4827feb-20a9-45ca-8474-90b81f003bd8.html
Foreign Labor Certification Data Center, https://www.flcdatacenter.com/
DHS Revises Definition of H-1B 'Specialty
Occupation,' Makes Other Changes
The Department of Homeland Security (DHS) issued an interim
final rule effective December 7, 2020, that revises the regulatory
definition of and standards for a "specialty occupation"
for
H-1B purposes. The rule:
".amends the definition of a "specialty
occupation" at 8 CFR 214.2(h)(4)(ii) to clarify that there
must be a direct relationship between the required degree field(s)
and the duties of the position. Consistent with existing USCIS
policy and practice, a position for which a bachelor's degree
in any field is sufficient to qualify for the position, or for
which a bachelor's degree in a wide variety of fields unrelated
to the position is sufficient to qualify, would not be considered a
specialty occupation as it would not require the application of a
body of highly specialized knowledge. Similarly, the amended
definition clarifies that a position would not qualify as a
specialty occupation if attainment of a general degree, without
further specialization, is sufficient to qualify for the
position."
The rule also:
- Adds definitions for "worksite" and "third-party worksite";
- Revises the definition of "United States employer";
- Clarifies how U.S. Citizenship and Immigration Services (USCIS) will determine whether there is an "employer-employee relationship" between the petitioner and the beneficiary;
- Requires corroborating evidence of work in a specialty occupation;
- Limits the validity period for third-party placement petitions to a maximum of 1 year;
- Provides a written explanation when the petition is approved with an earlier validity period end date than requested;
- Amends the general itinerary provision to clarify it does not apply to H-1B petitions; and
- Codifies USCIS' H-1B site visit authority, including the potential consequences of refusing a site visit.
Among other things, the interim rule requires that the
petitioner establish, at the time of filing, that it has actual
work in a specialty occupation available for the beneficiary as of
the start date of the validity period as requested on the petition.
In addition, all H-1B petitions for beneficiaries who will be
placed at a third-party worksite must submit evidence showing that
the beneficiary will be employed in a specialty occupation, and
that the petitioner will have an employer-employee relationship
with the beneficiary. DHS said the interim final rule will impose
new annual costs of almost $25 million for petitioners completing
and filing H-1B petitions, with an additional time burden of 30
minutes.
Litigation is likely, according to practitioners. Comments are
due by November 9, 2020, on the information collection and by
December 7, 2020, on the interim final rule.
Details: DHS interim final rule, https://www.govinfo.gov/content/pkg/FR-2020-10-08/pdf/2020-22347.pdf;
"Featured Issue: DHS and DOL Rules Altering the H-1B Process
and Prevailing Wage Levels" (data collection form for
potential plaintiffs), https://www.aila.org/advo-media/issues/all/dhs-dol-rules-alterning-h1b-prevailing-wage-levels;
"USCIS Issues Interim Final Rule Restricting Definition of
H-1B Specialty Occupation," Morgan Lewis, https://www.morganlewis.com/pubs/uscis-issues-interim-final-rule-restricting-definition-of-h-1b-specialty-occupation
USCIS Updates Guidance on TPS and Eligibility for
Adjustment of Status
On October 6, 2020, U.S. Citizenship and Immigration Services
(USCIS) issued policy guidance clarifying whether temporary
protected status (TPS) beneficiaries are eligible to adjust status
under § 245(a) of the Immigration and Nationality Act (INA).
That section requires a noncitizen to have been inspected and
admitted, or inspected and paroled, into the United States unless
exempt from this requirement.
USCIS said that its updated guidance "reaffirms
USCIS' longstanding interpretation that an alien who enters the
United States without having been inspected and admitted or
inspected and paroled, and who is subsequently granted TPS,
generally does not meet that requirement."
The updated guidance also incorporates Matter of Z-R-Z-C-,
which held that generally TPS beneficiaries who travel outside the
United States with prior authorization under INA § 244(f)(3)
retain the same status when they return to the United States that
they had when they departed. "If they were not considered
inspected and admitted, or inspected and paroled, before their
departure, that will not change when they return," USCIS
said.
This updated policy guidance "clarifies that decisions in
the Sixth and Ninth Circuits holding that TPS is an admission for
INA § 245(a) purposes are limited to those jurisdictions.
Outside of the Sixth and Ninth Circuits, Matter of H-G-G-, 27 I.
& N. Dec. 617, 635 (AAO 2019), applies."
Details: USCIS alert, https://www.uscis.gov/news/alerts/uscis-updates-policy-guidance-regarding-temporary-protected-status-and-eligibility-for-adjustment-of
USCIS Issues Guidance on Inadmissibility Based on
Membership/Affiliation in Communist Party or Totalitarian
Party
On October 2, 2020, U.S. Citizenship and Immigration Services
(USCIS) issued policy guidance to address inadmissibility based on
membership in or affiliation with the Communist Party or any other
totalitarian party.
A new section in the USCIS Policy Manual provides guidance on
how to adjudicate inadmissibility due to membership in the
Communist Party or any other totalitarian party in the context of
adjustment-of-status applications. In general, unless otherwise
exempt, any intending immigrant who is a member or affiliate of the
Communist Party or any other totalitarian party (or subdivision or
affiliate), domestic or foreign, is inadmissible to the United
States.
According to practitioners, although the new guidance adheres
to existing U.S. immigration law, it appears to direct immigration
officers to enforce the law more strictly and provides step-by-step
instructions for immigration officers making such inadmissibility
determinations.
Details: USCIS alert, https://www.uscis.gov/news/alerts/uscis-issues-policy-guidance-regarding-inadmissibility-based-on-membership-in-a-totalitarian-party;
"Experts Weigh Impact of U.S. Immigration Ban on Chinese
Communists," Voice of America News, https://www.voanews.com/usa/experts-weigh-impact-us-immigration-ban-chinese-communists
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