Important Update on Recent DHS and DOL Rule Changes to the H-1B Program

Dickinson Wright

Dickinson Wright

On December 1, 2020, the U.S. District Court for the Northern District of California issued an order in connection with an industry group lawsuit against both the U.S. Department of Homeland Security (DHS) and the U.S. Department of Labor (DOL). The judge found that both Departments failed to properly follow standard U.S. legal procedures governing the issuance of new regulations, in connection with the two immigration rule changes below from October. The court order sets aside both rules immediately, bringing much needed relief, especially to employers who were already struggling to comply with the perplexing new DOL prevailing wage calculations.

DHS “Strengthening the H–1B Nonimmigrant Visa … Program” Rule

  • The rule has been struck down in its entirety and will no longer take effect on December 7th, as originally planned.
  • It is possible that the DHS will appeal the judge’s ruling and/or start the process to reissue the rule under the normal procedures to promulgate regulations. However, both of those options would typically take at least a few months. Hence, both are considered unlikely, given the upcoming change in Administration in January.

DOL “Strengthening Wage Protections…” Rule

  • This rule has similarly been struck down in its entirety, and the DOL has implemented a phased approach to restoring the previous systems:
    • The previous wage data and prevailing wage level calculations have already been restored to the DOL’s prevailing wage website.
    • All Labor Condition Applications (LCA) pending on December 1st will continue to be processed timely.
      • However, if you filed an LCA after October 8th, with an artificially inflated wage offer because of the new DOL rule, and if you have time before needing to file your H-1B petition with the USCIS, you may consider withdrawing that LCA and refiling a new one.
    • New LCAs using the restored prevailing wage figures can be filed with the DOL starting December 9th.
    • Processing of formal prevailing wage determinations (mainly for PERM Labor Certification purposes) was put on hold by the DOL on December 1st and will resume on December 15th, using the restored prevailing wage figures.
      • If you received a Prevailing Wage Determination under the DOL rule after October 8th, a “redetermination” request can be submitted to the DOL. However, it is unclear how long those redeterminations will take to be processed and approved. So, the decision whether to request a redetermination should be carefully considered in the context of your overall greencard sponsorship strategy and timing constraints.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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