DHS and DOL Likely to Fast-Track H-1B Rules Without Comment Period
Since 2018, the Trump administration has been signaling its intent to further restrict legal immigration by revising the defining principles of the H-1B visa. “On September 3, 2020 the Department of Homeland Security (DHS) took one step closer to these restrictions by sending an “interim final rule” to the Office of Management and Budget (OMB) for final review. The new rule would:
- Revise the definition of specialty occupation
- Goal: Increase focus on obtaining best and brightest foreign nationals via the H-1B program
- Revise the definition of employer-employee relationship
- Goal: Better protect U.S. workers and wages
- Add requirements for employers to pay appropriate wages to H-1B visa holders
The Department of Labor (DOL) also submitted an Interim Final Rule titled “Restructuring of H-1B/H-1B1/E-3 and PERM Wage Levels” on September 16, 2020. The new rule could change requirements for LCAs and wage requirements, including:
- Employers and end clients could be required to jointly obtain LCAs where H-1B workers work at client sites
- Joint employer liability for LCA obligations on wages and working conditions
- Restructuring of H-1B, H-1B1, E-3 and PERM prevailing wage levels
On September 30, the Office of Information and Regulatory Affairs (OIRA) website showed that review was completed of both regulations, but the regulations have been withdrawn. USCIS stated that the OIRA “waived their preliminary review of the rule, which is communicated as a withdrawal on the website, but the rule mains active” and a “priority rulemaking item.”
The American Immigration Lawyers Association predicts:
“The USCIS and DOL Interim Final Rules are expected to combine to substantially modify prevailing wage requirements so as to limit the availability of the H-1B visa program to the most highly paid professionals, regardless of actual wage data for the labor market.”
Since President Donald Trump signed the “Buy American, Hire American” executive order on April 18, 2017, the Department of Homeland Security has made a series of changes to adjudication processes through policy memoranda and internal directives. The executive order put a special emphasis on the H-1B program and directed the Secretary of Homeland Security to “suggest reforms to ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.” RFEs and denials have increased since policy memos and adjudications have shifted to align with the executive order.
Earlier this year, a Presidential Proclamation “Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak.” This followed an earlier order that suspended new lawful permanent residents from entering to “to protect unemployed Americans from the threat of competition for scarce jobs.” The latest order prohibited the entry of certain nonimmigrants through December 31, 2020, including H-1B and H-2B visa holders (and family members accompanying or following to join), certain J visa holders, and all L visa holders and their dependents. The Department of State has since expanded “national interest exemptions” from the order. We recently reported on 3 Eligibility Criteria for Overcoming the L-1 Travel Ban and 5 Eligibility Criteria for Overcoming the H-1B Ban.
The proposed rule is also proceeding despite court cases striking down key provisions of policy memos enforcing requirements not supported by the regulations. The courts determined that “subspecialty” degree requirements and strict interpretations of employer-employee relationship were “inconsistent” with regulations and since implemented without rulemaking, “cannot be enforced.” The agency may be attempting to now implement these stricter policies through the formal rulemaking process.
FREQUENTLY ASKED QUESTIONS
What effects would the rule have on H-1B visas?
While the text of the rule is still unknown, the administration has signaled its intention to restrict legal immigration by reducing the number of H-1B visas awarded. The rule proposes to revise the definitions of specialty occupation and employer-employee relationship and to pay “appropriate” wages to H-1B workers.
- Employers are likely to see consulting and IT services industries targeted for their use of “third-party placement.” Adjudicating officers have often questioned the placement of H-1B workers at various worksites and offered short approval periods based on the contracts or itineraries provided.
- Some experts have also predicted that the rule will target “routine” jobs such as software engineers, pharmacists, etc. to encourage employers to hire U.S. workers.
- The rule could increase wages for some positions in an attempt to limit H-1B employment.
Could an H-1B rule be implemented this year?
Regulations require a comprehensive OMB review for rules deemed “economically significant” but rather than going through the public notice and comment period, the rule has been expedited to the Office of Management and Budget review stage. The OMB has up to 90 days to review the “interim final rule” before publishing in the Federal Register. The rule may become effective immediately or shortly after publication in the Federal Register.
With the recent “withdrawal” of the rules, we may see the Interim Final Rules published with immediate effective dates. An Interim Final Rule can become effective without responding to public comments but does allow for the collection of comments to be considered at a later date.
What can you do now?
Employers should be prepared for increased restrictions when planning for upcoming labor needs. Ahead of the rule, employers can:
- File extensions early before standards are revised
- Gather strong evidence of specialty occupation and employer-employee relationship
- Contracts showing availability of work
- Comprehensive job descriptions outlining the specialized nature of the work
- Document qualifications and requirements for similar roles in the company and industry
- Ensure salary levels are appropriate for role
- Monitor Challa Law Group’s social media, website, and tune into our webinars for the latest updates
Contact Challa Law Group
H-1B extensions can be filed up to 6 months in advance of the ending validity date. Contact Challa Law Group to start your extension today.
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