Tuesday, October 6th, 2020, the Department of Homeland Security H-1B Strengthening Rule and DOL Prevailing Wage Interim Final Rules were posted for public inspection. Both DHS and DOL have issued press releases regarding these changes.
Both the DHS and DOL regulations will be published tomorrow in the federal register publish and have a 30 day comment period.
The DOL rule will take effect tomorrow, Wednesday, October 7th, 2020. This rule changes the prevailing wage levels 1-4 from the 17, 34, 50 and 67th percentiles to 45, 62, 78 and 95 percentile of surveyed wages from BLS for H-1B, H-1B1, E-3 and I-140s. This means that all wage determinations made by the DOL starting tomorrow fall under this new regulatory construct, including any LCAs that are filed starting tomorrow.
The DHS regulation will have a 60-day delayed effective date. DHS, in its press release, stated that the regulation will:
- Narrow the definition of “specialty occupation” as Congress intended by closing the over-broad definition that allowed companies to game the system;
- Require companies to make “real” offers to “real employees,” by closing loopholes and preventing the displacement of the American worker; and,
- Enhance DHS’s ability to enforce compliance through worksite inspections and monitor compliance before, during, and after an H1-B petition is approved.
The H-1B program is the most common way professional workers achieve work authorization in the U.S. These two regulations will dramatically change how the H-1B Program has worked since the most recent changes in 1996.
Please contact SPS Immigration if you have questions regarding how this may impact your case.