DHS and DOL Rules Altering the H-1B Process and Prevailing Wage Levels, latest update as of January 20, 2021.

Featured Issue: DHS and DOL Rules Altering the H-1B Process and Prevailing Wage Levels

Latest Updates! As of January 20, 2021

On January 20, 2021, White House Chief of Staff Ron Klain issued a memorandum regarding review of pending regulatory actions which directs, in part, that 1) all rules pending at the Federal Register that have not been published must be immediately withdrawn and 2) agencies must “consider” postponing the effective dates for regulations that have been published, but not yet taken effect, for 60 days from the date of this memorandum. As a result, the modified version of the Strengthening the H-1B Nonimmigrant Visa Classification Program Final Rule sent to the Federal Register on January 15, but not yet published, will be withdrawn, In addition, any final rule that has already published, but not yet taken effect may upon further agency action be postponed for until March 21, 2021, including the H-1B Wage Selection Final Rule. AILA will continue to monitor any agency action taken to delay the effective dates of the rule.

As the two bulletins clarifying filing requirements for LCAs by secondary employers and on H-1B program obligations for common-law employers published by the Department of Labor on January 15, 2021, rely on the finalization of the DHS Rule, it is likely that they will be withdrawn by DOL as well.

On January 14, 2021DOL issued a final rule which adopts, with changes, the interim final rule published at 85 FR 63872 amending the regulations governing permanent labor certifications and Labor Condition Applications to incorporate changes to the computation of prevailing wage levels. The rule will take effect on March 15, 2021. The effective date of the rule will likely be further extended as the President-Elect’s transition team has indicated that the Biden Administration will issue a memorandum on January 20 delaying implementation of “midnight regulations” (i.e. those issued since the election but not yet effective) for 60 days. It is also expected that groups that previously challenged this regulation will continue to litigate the revised final rule. Read AILA’s Practice Alert for more information.

The rule was initially published and effective on October 8, 2020. It was struck down on December 1, 2020, alongside a DHS interim final rule that amended requirements for H-1B classification. For more information on the soon to be published rule and information on both the DHS and DOL rules continue to watch this page.

On December 1, 2020, in Chamber of Commerce, et al., v. DHS, et al., finding that the DHS and DOL H-1B wage rules were “promulgated in violation of 5 U.S.C section 553(b),” the U.S. District Court for the Northern District of California set aside the DHS interim final rule, Strengthening the H-1B Nonimmigrant Visa Classification Program, and the DOL interim final rule, Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United StatesUSCIS announced that it will “fully comply with the court’s decision.” AILA is monitoring the situation and will provide additional information as it becomes available. On December 2, 2020, AILA’s DOL Liaison Committee reached out to DOL OFLC regarding the decision’s impact. Read this practice alert for more information.

On December 14, 2020, in Purdue University, et al., v. Scalia, et al., a federal judge granted the plaintiffs’ motion for summary judgment against the DOL prevailing wage IFR. The judge ordered DOL to reissue prevailing wage determinations that were issued under the rule. Read AILA’s press statement regarding this suit.

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