Back to Top skip to main content
Green and Spiegel - An Immigration Law Firm - United States
Oct 7, 2020

U.S. Government Issues New Rules Tightening H-1B and Other Employment Based Immigration Programs

Jonathan A. Grode and Gregory J. Eck

On October 7, 2020 The U.S. Department of Homeland Security (DHS) announced an Interim Final Rule (IFR) designed to tighten the H-1B visa program (and other Labor Condition Applications visa processes) in order to make it more difficult for employers to displace U.S. workers.  The IFR, which will have a 60-day delayed effect and a 30-day comment period, will:

  • Narrow the definition of “specialty occupation” to include only those occupations that require a specialized degree or equivalent experience;
  • Impose tighter hiring requirements to prevent the displacement of the U.S. workers especially for third party worksite placements; and
  • Enhance DHS’s ability to enforce compliance through worksite inspections and monitor compliance before, during, and after an H1-B petition is approved.

Also on October 7, 2020, the U.S. Department of Labor (DOL) announced an IFR designed to reform the prevailing wage methodology used by the DOL in several foreign worker programs, including the H-1B, H-1B1, E-3, and PERM Labor Certification processes.   This rule will become effective on October 8, 2020.

Under current law, employers who seek to temporarily employ foreign nationals in the H-1B, H-1B1, and E-3 nonimmigrant classifications, must certify by means of a Labor Condition Application (LCA) that intended foreign workers will be paid no less than the“prevailing wage” for the occupational classification in the area of intended employment.  The “prevailing wage” is defined as the average wage paid to similarly employed workers in a specific occupation in the geographic area of intended employment.  The DOL applies a four-tiered wage level structure, representing the range.  To arrive at a specific prevailing wage for each level the DOL applies a formula where each of the four levels represents a particular percentile of the average wage for a given occupation.  Under current rules, the Level I (entry level) prevailing wage is set at the 17th percentile of the average wage for the occupation. Under the new regulation, the entry-level minimum will increase to the 45th percentile – just under what is today the minimum salary for a Level III occupation.   Level IV prevailing wages increase from the 67th to the 95th percentile. 

LCAs filed on or after October 8 will be subject to the new and higher wage minimums. LCAs filed and pending before October 8 will be reviewed under the current prevailing wage structure.

The new rule will also apply to the PERM Labor Certification process, by which employers must seek to recruit U.S. workers for the position using a prevailing wage issued by the DOL and, if no willing, available, and qualified U.S. workers are found, promise to pay the foreign worker at least the prevailing wage for the position.     PERM prevailing wage determinations issued on or after October 8 will be subject to the new wage structure. Determinations issued before October 8 will be based on the current prevailing wage structure. Prevailing wage determination requests pending on October 8 will be subject to the new regulation.

Unlike the DHS rule, the DOL rule has no comment period, but rather goes into effect immediately on October 8.  It is expected that the rule will be challenged and could be enjoined in a Federal Court filing because the standard rule making protocol was not followed and an urgent justification for the change was not established (the government has suggested COVID-19 as the basis). 

For additional information about these regulatory changes, please contact the attorneys at Green & Spiegel, LLC at (215) 395-8959 to best understand your options.

Related Team

Jonathan Grode

Jonathan A. Grode

215-395-8959

215-395-8959

email Jonathan

Philadelphia (US Headquarters)
Providence (New England)

Full Biography

Jonathan A. Grode
Greg Eck Team Page

Gregory J. Eck

(215) 395-8959

(215) 395-8959

email Gregory

Philadelphia (US Headquarters)

Full Biography

Gregory J. Eck

Recent Blogs

Oct 19, 2020

USCIS Announces Increased Premium Processing Fees Effective October 19, 2020

Starting October 19, 2020, the fee for Premium Processing, will be $2,500 (previously $1,440) for all filings except those requesting H-2B (non-agricultural seasonal worker) or R-1 (Religious Worker) status, for which the new fee is $1,500 (previously $1,440).Any filings post-marked on or after October 19th must include the new fee amount. Any Form-1-907 postmarked on or after October 19th with the incorrect fee amount will be rejected and the fee returned.

Oct 13, 2020

US and European Partners are Moving Towards Reopening Transatlantic Travel by Adopting New Pandemic Protocols

KEY POINTS: • Foreign nationals who wish to travel to the United States from Europe either must fit into one of the travel restriction exceptions or obtain advance permission to board a plane to the U.S. • In the alternative, they may travel to a third country and quarantine there for two weeks prior to coming to the United States. • The U.S. and overseas partners are anxious to relax those restrictions. Advanced COVID-19 airport testing may provide a solution. • We expect some testing of these technologies followed by the announcement of new travel protocols in time for the winter holidays.

Oct 09, 2020

Biden Vs. Trump Comparison

As we approach the November elections it has never been clearer that this country faces upheaval and challenges that will bring about dramatic, lasting, and hopefully vital changes to our nation and its people. Here, we compare how the two candidates have and will handle immigration policy in the United States.