Trump Administration Issues New Rules for H-1B and Other Work Visas Ahead of Election

With less than one month remaining until the general election, the Trump Administration has issued two new rules that will change the eligibility requirements for H-1B non-immigrant visas and raise the minimum wage requirements for foreign workers. However, because the Trump Administration skipped the normal review process for finalizing the rules, it is likely that the rules will face significant challenges in the form of litigation.

1. Changes to the H-1B Program

On October 8, 2020, the Department of Homeland Security published a new regulation that makes the requirements for H-1B non-immigrant visa program stricter. The new regulation goes into effect 60 days after publication (December 7, 2020). The significant changes in the new rule include:

  • Changes to the definition of and requirements of “specialty occupation”: The H-1B visa program allows a foreign national who has at least a bachelors degree or its equivalent to work for an employer in the United States in a job that is a “specialty occupation.” The new rule makes the definition of a “specialty occupation” stricter by stating that a job that only requires a general academic degree (for example, “liberal arts” or “business”) as its minimum degree requirement will not qualify as a “specialty occupation” for H-1B purposes unless additional specialization is required.
  • The new rule specifically targets third-party worksite placements, where the H-1B petitioner (for example, an IT staffing firm) places the H-1B worker at a client’s workplace. In these types of situations, the new regulation requires that the H-1B petitioner submit evidence like contracts or work orders to prove that the H-1B petitioner will have an employer-employee relationship with the H-1B beneficiary, and that the beneficiary will perform services in a specialty occupation at the third-party location. The rule states that an itinerary is required for H-1B employees who will work at several worksites.
  • For such third-party placements, the new rule will limit the H-1B petition approval validity period to a maximum of one year (the current maximum is three years).

2. Major Increase to Prevailing Wage for H-1B, H-1B1, and E-3 Visas and Employment-based Green Cards (PERM)

In conjunction with the H-1B rule above, the U.S. Department of Labor (DOL) also published a new rule on October 8, 2020 changing the way that the “prevailing wage” (minimum wage) for employment-based visas is calculated based on government data. The calculation of the prevailing wage is important because it establishes the minimum salary that a U.S. employer must pay a foreign national worker in order to sponsor the worker for an H-1B, H-1B1 (for specialty occupation workers from Singapore and Chile), or E-3 (for specialty occupation workers from Australia) visa, or to sponsor a foreign national for an employment-based green card through the PERM process.

For the above visa petitions, the DOL uses the Occupational Employment Statistics (OES) data from the Bureau of Labor Statistics (BLS) to determine the minimum wage that a U.S. employer must pay a foreign employer. This process is intended to prevent both wage suppression and the replacement of U.S. workers by lower-cost foreign workers. However, the new DOL rule will result in significant increases in the prevailing wage requirements for U.S. employers, as shown here:

  • Level I Wage: 45th percentile (increase from 17th percentile)
  • Level II Wage: 62nd percentile (increase from 34th percentile)
  • Level III Wage: 78th percentile (increase from 50th percentile)
  • Level IV Wage: 95th percentile (increase from 67th percentile)

For H-1B petitions, the new DOL prevailing wage rule applies to Labor Condition Applications (LCAs) filed on or after October 8, 2020. For prevailing wage requests under the PERM program, the new DOL rule will apply to prevailing wage determinations that the DOL issues on or after October 8, 2020.

3. Look for Lawsuits to Challenge the New Rules

The Trump Administration issued the above rules under President Trump’s “Buy American, Hire American” (BAHA) executive order that promised to make immigration policies stricter in order to protect American workers. However, the Trump Administration issued the new regulations without going through the standard period allowing for review and comment by the public as well as other government offices. Therefore, we expect that both regulations will be challenged in the form of lawsuits in federal court that seek to block the regulations on the basis that the Trump Administration failed to follow the required procedures when issuing them. Please stay tuned for timely updates.

The above information is for informational purposes only and is not legal advice.
If you need advice on the eligibility requirements for H-1B and other work visas, get in touch with one our team today.

Written by Joseph Fungsang, an immigration attorney and partner-in-charge of our New York City office, and Regan O’Brian, paralegal in our Cleveland Office. 

© Margaret W. Wong & Associates LLC

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