New H1B Interim Final Rule: Poised to be a Disaster!
Dev Banad Viswanath, Esq.
On October 8th, just 3.5 weeks before the 2020 Presidential election, the Department of Homeland Security, which is the agency that runs USCIS, and the Department of Labor, issued two interim final rules impacting H1B visas. The Proposed rules are slated to go into effect December 7th and will ensure a much more difficult adjudication of H1B visa petitions. The normal course of proposed rules is that there must be a comment period for the public to respond and voice thoughts and concerns. DHS has taken the unprecedented step of overstepping the comment period, implementing the rule, and then allowing folks to voice their opinion. All, the agency declares, is in the name of saving America in this Covid 19 crisis and with the high unemployment rates.
Things were already increasingly harsh and now they have laid down a bombshell before elections. And there are sure to be lawsuits filed to stem these changes. While it is a question mark whether this plan will actually take effect, or whether the election will have a dampening on this rule, we must be aware that at this moment, life for Employers and H1b applicants may get significantly tougher. It is worthwhile for the public to be aware of what may come.
The DHS rule will, among other things, revise the definition of what it means to be a “specialty occupation”, to making meeting the criteria much harder and the DOL rule will drastically change the computation for prevailing wages, which will increase the wage rate that H1b candidates must be paid.
The major changes are as follows:
1) A change in the Regulatory Definition of what is a “specialty occupation;
2) Revise the regulatory definition of “United States Employer” and the understanding of “employer-employee relationship” so as to exclude or limit the H-1B category where there is third-party placement of H-1B workers;
3) A revision to the Labor Condition Application (LCA) requirement so that, when the H-1B worker is assigned to a third-party work site, the end-client would need to join in or be a signatory to the LCA; and
4) Modify prevailing wage requirements so as to limit the availability of the H-1B visa program to the most highly paid professionals, regardless of actual wage data for the labor market.
There is no way of getting around it. These interim final rules are bad! They have a fair amount of populist and nationalist appeal but will further hurt not only our economy because the levels of qualified individuals will drop significantly and I have no doubt that outsourcing again will increase, but it will destroy so many peoples lives who have entered the American system as H1B employees, spouses, or children, as well as the hundreds if not thousand of companies that rely on the H1B category of immigration to satisfy a portion of their staffing needs. Money will be lost, and jobs will be gone.
Everyone, all stakeholders, Corporate/Noncorporate entities, Institutions, and Individuals Employers are invited to voice their concerns or comments. If you or a loved one is in need of advice on these new regulations, please contact an immigration attorney well versed in this area.