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.pdfhttps://www.dol.gov/agencies/eta/foreign-laborhttps://www.aila.org/advo-media/issues/all/dhs-dol-rules-alterning-h1b-prevailing-wage-levelshttps://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-payhttps://www.forbes.com/sites/stuartanderson/2020/10/07/trump-administration-issues-two-new-rules-to-restrict-h-1b-visas/#22e044835120https://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.

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.”

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.

The content of this article is intended to provide a general

guide to the subject matter. Specialist advice should be sought

about your specific circumstances.

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