New DOL and DHS Rules to Impact Certain Immigration Petitions and Applications

The Department of Homeland Security (DHS) and the Department of Labor (DOL) will publish two rules on October 8, 2020 that will impact certain immigration-related applications and petitions including H-1B, H-1B1, E-3 and PERM labor certifications.

DOL

A new DOL regulation will change the computation of prevailing wage levels, resulting in higher prevailing wages for all occupations for each OES-based wage level.

This rule takes effect on October 8, 2020.  In order to use the current wage leveling system, Labor Condition Applications (LCAs) must be filed on or before October 7, 2020.

The DOL uses Occupational Employment Statistics (OES) data from the Bureau of Labor Statistics (BLS) to determine prevailing wages for various occupations. This OES wage is divided into four wage levels, each level representing an appropriate skills and experiential level for the occupation.

What does this mean for H-1B, H-1B1, and E-3 cases?

1. LCAs filed on or after October 8, 2020 will be need to reflect the new and higher prevailing wage.
2. LCAs filed before October 8, 2020 and remain pending will not be impacted.

What does this mean for PERM Labor Certifications?

1. Prevailing Wage Determination Requests that remain pending on October 8, 2020 will be subject to the new rule.

DHS

DHS is expected to publish a final rule on October 8, 2020 that proposes to:

• Amend the definition and criteria of “specialty occupation”;
• Define “worksite” and “third party worksite”;
• Clarify the definition of “United States employer”;
• Require corroborating evidence of work in a specialty occupation;
• Limit the validity period for third-party placement petitions to a maximum of 1 year;
• Codify USCIS' H-1B site visit authority. 

The anticipated effective date of the DHS rule is December 7, 2020.

MT Perspective

How is MT responding?

1. We are reviewing our records carefully to assess impact and will reach out to affected clients with recommendations.
2. It is very likely that the new DOL rule will be litigated, and courts may issue an injunction. The new DOL Rule goes into effect immediately. The DOL did not provide any advance notice or an opportunity for public comments. We are monitoring the cases closely.
3. The new DHS rule is subject to federal lawsuits. This rule also did not undergo a public-comment period. In addition, courts may rule that the acting secretary of Homeland Security may lack the authority to issue this rule. Should Joe Biden win the presidential election, the new Administration may reverse the changes.