It is likely that both rules will be legally challenged.
On October 7, 2020, the Department of Homeland Security (DHS) announced its H-1B strengthening rule, and the Department of Labor (DOL) also announced its prevailing wage interim final rules. Both rules were published officially on October 8, 2020, and have a 30-day comment period. The DHS rule will have a 60-day delayed effective date; the DOL rule takes effect immediately as of its October 8, 2020, publication date.
Both rules reflect an attempt to overhaul the H-1B specialty occupation visa program by raising the minimum salary levels for foreign national employees and narrowing the program's eligibility criteria. The DHS rule will:
- Narrow the definition of “specialty occupation”;
- Require companies to make “real” offers to “real employees”; and
- Enhance DHS’s ability to enforce compliance through worksite inspections and monitor compliance before, during and after an H-1B petition is approved.
The DOL rule increases the prevailing wage levels from the current use of the 17th, 34th, 50th and 67th percentiles to the 45th, 62th, 78th and 95th percentiles of surveyed wages from the Bureau of Labor Statistics to determine Levels 1-4. This will impact the determination of wages for H-1B, H-1B1 and E-3 petitions, as well as PERM applications and related I-140 petitions.
Although it is likely that both rules will be legally challenged, it should be noted that because the DOL rule takes effect immediately, it will likely remain in effect for some period before litigation can have an impact.
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