Department of Labor Prevailing Wage Changes:
On October 8, 2020, a new Department of Labor (DOL) regulation was published and took immediate effect. The impact is to raise prevailing wages that are based on the Occupational Employment Statistics (OES) wage data for H-1B, H-1B1, and E-3 nonimmigrant cases and the PERM labor certification process.
There are reports circulating that there are major errors in the way this new regulation formulates the wage levels. We expect to see Federal Court challenges to the DOL changes very soon.
However, as of the date of publishing this news alert, the DOL regulations are in effect.
Please see a few key takeaways below.
Key Takeaways:
- DOL regulatory changes do not appear to prevent the use of alternative wage surveys for determining prevailing wages.
- For those using the OES wage data to set the prevailing wage:
- Labor Condition Applications filed prior to October 8 are able to use the previous (and lower) OES wage level data.
- Labor Condition Applications filed on or after October 8 will be subject to higher wage level data.
- PERM prevailing wage determinations issued prior to October 8 will be based on the previous (and lower) OES wage level data.
- PERM prevailing wage determinations issued on or after October 8 will be subject to the new wage structure. This means if the wage determination is still pending, it is subject to the new higher wage data.
Another Round of H-1B Changes:
On October 8, 2020, the Department of Homeland Security (DHS) published “Strengthening the H-1B Nonimmigrant Visa Classification Program.” It is an interim final rule that will take effect on December 7, 2020, unless there is a successful challenge in the courts to its implementation. Note, a challenge is expected.
The purported goal of this rule is to the ‘strengthen’ the H-1B program. However, ‘strengthen’ in this case appears to mean the government is seeking to limit the use of the H-1B program. This is especially true of H-1B employers looking to place their employees at a third party worksites.
Key takeaways:
- The proposed H-1B changes to the regulations do not go into effect until December 7, 2020;
- There is no immediate impact on already approved H-1B petitions. Any impact would be on future petition filings for these individuals.
- If the proposed rule does go into effect, it will apply to all H-1B petitions filed on or after December 7, 2020. This means that extensions and amendments filed on or after December 7, 2020, will be subject to these new H-1B regulations.
- We expect Federal Court challenges to these proposed changes, which means they might not actually go into effect.
- A lot of these proposed changes that relate to the definition of specialty occupation have been present in USCIS adjudications since 2017, based on the USCIS issued Requests for Evidence. This means that our office has already been assessing cases and drafting petitions with this narrow conception of what constitutes an H-1B specialized knowledge position. Therefore, there is no cause for panic as we are prepared to deal with these narrowed definitions and requirements if need be.
Highlights from the Rule:
Specialty occupation:
- The rule amends the definition of a “specialty occupation” to clarify that there must be a direct relationship between the required degree field(s) and the duties of the position. For example, USCIS expects that a software developer position will likely require at least a bachelor’s degree in computer science.
- The requirement of a direct relationship between a degree in a specific specialty, or its equivalent, and the position does not mean the position can only require a singular field of study. USCIS will accept the equivalent to a degree in a specific specialty, as long as that equivalent provides the same (or essentially the same) body of specialized knowledge.
- In a telling footnote, USCIS refers to two prominent Federal Court cases that help illustrate future adjudication standards if and when this rule is implemented.
- Residential Fin. Corp. v. U.S. Citizenship & Immigration Servs., 839 F. Supp. 2d 985, 997 (S.D. Ohio 2012): stating that when determining whether a position is a specialized occupation ‘‘knowledge and not the title of the degree is what is important.”
- Relx, Inc. v. Baran, 397 F. Supp. 3d 41, 54 (D.D.C. 2019): there is no requirement in the statute that only one type of degree be accepted for a position to be specialized.
- This means we must evaluate a position as to whether it requires a specific body of highly specialized knowledge and whether the candidate has obtained that specific body of highly specialized knowledge while completing his/her degree. The title of the field of study is less important than the knowledge required by the position and obtained by the employee/candidate. Hence someone with a degree in electrical engineering could arguably still qualify for a software engineering position, as long as they obtained the requisite body of highly specialized knowledge required for the position while completing their degree.
- When applicable, USCIS will also consider whether the beneficiary has education, specialized training, and/or progressively responsible experience that is equivalent to completion of a U.S. baccalaureate or higher degree in the specialty occupation.
- General degree requirements listed for a position requirement, such as Business Administration, will not provide enough specificity to meet the new requirements.
- The rule eliminates the terms “normally,” “common,” and “usually” from the regulatory criteria. This change means that the petitioner will have to establish that the bachelor’s degree in a specific specialty or its equivalent is a minimum requirement for entry into the occupation in the United States by showing that this is always the requirement for the occupation as a whole, the occupational requirement within the relevant industry, the petitioner’s particularized requirement, or because the position is so specialized, complex, or unique that it is necessarily required to perform the duties of the specific position.
Worksite definition:
- DHS will add definitions for ‘‘worksite’’ and ‘‘third-party worksite’’ to the existing list of definitions:
- Worksite means the physical location where the work actually is performed by the H–1B nonimmigrant. A ‘‘worksite’’ will not include any location that would not be considered a ‘‘worksite’’ for Labor Condition Application (LCA) purposes;
- Third-party worksite means a worksite, other than the beneficiary’s residence in the United States, that is not owned or leased, and not operated, by the petitioner.
Employer-employee relationship:
- DHS is changing this definition by: (1) striking the word “contractor” from the general definition of “United States employer”; (2) inserting the word “company” in that general definition; (2) expanding upon the existing requirement to engage the beneficiary to work within the United States; and (3) expanding upon the employer-employee relationship and the factors used to determine if a valid “employer-employee relationship” between the petitioner and the beneficiary exists or will exist.
Third-party contractors:
- The petitioner must establish when filing an H-1B petition that it has actual work in a specialty occupation available for the beneficiary.
- The validity period for third-party placement petitions is limited to a maximum of 1 year, requiring annual extensions to continue the employment.
Codifying site visits:
- The regulation notes an inspection can include the petitioning organization’s headquarters, satellite locations, and third-party worksites.
- The failure or refusal of the petitioner or a third-party to cooperate with a site visit can be grounds for denial or revocation of any H-1B petition.
