USCIS Interim Final Rule Revising Definition of “Specialty Occupation”

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Womble Bond Dickinson

On October 6, 2020, the U.S. Department of Homeland Security (DHS) issued an Interim Final Rule (IFR) to be published on October 8, 2020 and to take effect on December 7, 2020.  The rule revises regulations regarding the H-1B nonimmigrant visa program. The rule’s changes to the H-1B program restrict eligibility for the program in several ways, including revising the definition of H-1B specialty occupation to include the requirement of a specific relationship between the required degree field(s) and the duties of the offered position.  The rule also restores the requirement that employers provide contracts, work orders, itineraries or similar evidence to prove employer-employee relationship when sending H-1B workers to third party worksites.  This requirement was defeated in federal court, and earlier this year DHS retracted its memo enforcing this requirement for third party placements, but this rule restores this requirement. The rule reduces the current three-year maximum validity period to one year.  It also augments DHS’ power to determine compliance with worksite inspections and to oversee compliance before, during, and after an H-1B petition is approved. Inspections may be conducted at an employer’s headquarters, satellite locations, and work sites, including third-party worksites.  USCIS will have the authority to deny or revoke H-1B petitions if it determines the employer or third party fails or refuses to cooperate with site visits. 

DOL Interim Final Rule on Computation of Prevailing Wage Levels

On October 6, 2020, the U.S. Department of Labor (DOL) issued an Interim Final Rule (IFR) that will increase required wages for permanent labor certifications and labor condition applications, which are required for H-1B, E-3, and H-1B1 workers.  The rule will be published on October 8, 2020 and will be effective that day.  Prevailing wages are computed by assessing percentiles of the average wage for the offered occupation. The IFR amends the computation of prevailing wage levels, resulting in higher prevailing wages for all occupations for each OES-based wage level in the following ways: 

  • Level I wage is increased from 17th percentile to 45th percentile;
  • Level II wage is increased from 34th percentile to 62nd percentile;
  • Level III wage is increased from 50th percentile to 78th percentile; and
  • Level IV wage is increased from 67th percentile to 95th percentile.

This rule will apply to requests for prevailing wage determination (PWD) pending with the National Prevailing Wager Center (NPWC) as of October 8, 2020; requests for prevailing wage determinations filed with the NPWC on or after October 8, 2020; and LCAs filed with DOL on or after October 8, 2020 if the prevailing wage source is the OES survey and if the employer did not obtain the PWD from the NPWC prior to October 8, 2020. DOL will not apply the new wages to any prior issued prevailing wage determinations, permanent labor certification applications, or LCAs. 

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