BREAKING NEWS: NEW RULES WILL BE ISSUED THAT WILL SIGNIFICANTLY IMPACT H-1B, E-3 AND PERM PROGRAMS
On October 8th, the Department of Homeland Security (DHS) and the Department of Labor (DOL) are set to publish two interim final rules impacting the
H-1B program and the prevailing wage system.
President Trump has made H-1B reform a priority in his June
proclamation restricting the entry of H-1B, L-1 and certain J-1 nonimmigrants. The new DHS regulation, along with the Department of Labor affecting wage minimums for the H-1B and PERM programs, are the result of that proclamation.
The DOL rule,
Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States, will change prevailing wage levels for Labor Condition Applications (LCAs) and Prevailing Wage Determinations (ETA-9141) for PERM applications. Specifically, the 4-level prevailing wage system will change from being set at the 17th, 34th, 50th, and 67th percentiles to the (i.e., the new level-1 prevailing wage will be nearly as high as the current level-3 prevailing wage). 45th, 62nd, 78th, and 95th percentiles and new wage levels will only apply to LCAs filed on or after the effective date, and PWDs pending or filed as of the effective date. This rule is set to take effect tomorrow, October 8th,
The DHS rule,
Strengthening the H-1B Nonimmigrant Visa Classification Program, aims to clarify the definitions of “specialty occupation” and “employer-employee relationships” in order to “strengthen the integrity of the H-1B program,” while limiting the employment authorization of workers at third party sites to 1 year periods. As stated earlier, this rule will be effective 60 days after the publication date and will not apply to any pending or previously approved petitions.
An H-1B specialty occupation is one that normally requires a bachelor’s degree or equivalent as a minimum requirement. The new regulation tightens the regulatory definition of a specialty occupation to mandate that the bachelor’s degree requirement be more directly related to the specific H-1B specialty. The rule explicitly states that a position is not a specialty occupation if a general degree – such as business administration or liberal arts – is sufficient to qualify, without any further specialization.
The new regulation also removes an option that permitted a petitioning employer to establish that the required degree is common in the industry for the specialty occupation. The revised version requires the petitioner to establish that the
required degree is the minimum requirement for entry into parallel positions at similar organizations.
The new regulation also adds definitions that distinguish a “worksite” from a “third-party worksite.” Under the rule, a worksite is the physical location where the work is actually performed by the H-1B worker and must conform to the U.S. Department of Labor LCA rules. A third-party worksite is a place “other than the beneficiary’s residence in the United States” that is not owned, leased or operated by the petitioner.
The rule also clarifies how USCIS will determine whether an employer-employee relationship exists between the H-1B petitioner and the beneficiary. The regulation draws from longstanding common-law factors and adds new elements such as whether the beneficiary produces an end-product that is directly linked to the petitioner’s line of business. It also includes commonly used elements such as right to control, supervise, hire and fire. USCIS’s former policy memorandum on the employer-employee relationship was invalidated by a federal court earlier this year. USCIS will also limit the H-1B validity period for third party worksite petitions
to a maximum period of one year.
In addition USCIS’s Fraud Detection and National Security Directorate authority to conduct site visits only tightens. USCIS can conduct site visits before or after the approval of an H-1B petition, the authority to the authority to deny or revoke a petition as a result of a petitioner’s or third party’s refusal to cooperate with or permit a site visit and the authority to go to third party sites.
Please reach out to your Greenspoon Marder LLP Immigration & Naturalization Practice Group attorney for any questions or concerns. Click here to stay updated on our weekly alerts.