Clarity and Strength in Immigration Law

Major Shake-Up in the H-1B World: Three Things To Watch For

The past couple of weeks three major proposed regulations have been announced, which will significantly affect H-1B processing:

  1. DOL Prevailing Wage Interim Final Rule: This rule went into effect within 36 hours of being published, and took effect October 8, 2020. The DOL effectively changed the way that they calculate the wage levels for prevailing wages, which are used for labor condition applications (LCAs) for H-1Bs, H-1B1s, E-3s, etc., as well as for prevailing wage determinations in the PERM labor certification context.
    • For right now, employers must either use the new DOL wage structure, or they may submit a private wage survey (which is not guaranteed to be accepted by DOL).
    • There are several lawsuits currently pending, including Purdue, et. al., v. Scalia, et. al.. This particular lawsuit was filed by seventeen individual and organizational plaintiffs, represented by AILA (American Immigration Lawyers Association) and members of AILA’s Board of Governors.
    • If you would like a more detailed analysis of this rule, a nice summary can be found here. 
  2. DHS Regulation that amends the requirements for the H-1B classification: This rule was published October 8th, and will become effective December 7th, unless it is enjoined. This rule contains several elements:
    • Specialty occupation: the rule amends the definition of specialty occupation to indicate that there must be a direct relationship between the required degree and the duties of the position, and petitioners will have to establish that the bachelor’s degree in a specific field of study is always required (vs. showing that it is normally required now).
    • Third-party worksites: the rule sets a one year maximum validity period for all H-1B petitions where the beneficiary will be working at a third-party worksite.
    • Employer-employee relationships: the rule defines the term employer-employee relationship to include the factors listed in the January 2010 Neufeld Memo, but also takes into account whether the employer actually exercises the right to control the employee’s work.
  3. DHS Regulation that would significantly change the H-1B cap lottery system. USCIS has long used a lottery system to randomly select H-1B cap petitions. The system changed in 2020 with the creation of an online registration system. This regulation, if it becomes effective, will allow USCIS to rank and select H-1B petitions based on wage levels, with USCIS selecting the highest wage levels first. You can find a summary of this regulation here. 

We are hopeful that either litigation or a change in the administration will prevent these regulatory changes from being implemented. However, in the meantime, a strategic and well-thought out immigration plan for employers and employees alike is critical to optimize your chances of achieving your immigration-related goals.

If you need help navigating this process with confidence, please contact us today to get the process underway! We are immigration lawyers in Richmond, VA but we serve clients throughout the US and around the world. You can call us at 804-396-3412 or send us an email to info@sumnerimmigration.com. We look forward to hearing from you.