DHS New Rules Impact H-1B Program

USCIS announced that the H-1B rule will not be going into effect: U.S. District Court for the Northern District of California Vacates the Strengthening the H-1B Program Interim Final Rule.

Department of Homeland Security and Department of Labor restores Integrity to H-1B Visa Program and announced an interim final rule that will revamp the H-1B specialty occupation visa program significantly.

The new two immigration rules directly aimed at the H1B and PERM Green Card processes.

The rule directly impacts all H-1B visa applications including extensions, amendments, Change of Status, Transfer and PERM Green Card. The rule will be effective 60 days after its publication in the Federal Register.

impacth1b

Closer Look at the Rule:

  • Impacting the H1B Specialty Occupation definitions. The new rule will:
    • Narrow the definition of “specialty occupation” as Congress intended by closing the overbroad definition that allowed companies to game the system;
      • Consistent with existing USCIS policy and practice, a position for which a bachelor’s degree in any field is sufficient to qualify for the position, or for which a bachelor’s degree in a wide variety of fields unrelated to the position is sufficient to qualify, would not be considered a specialty occupation as it would not require the application of a body of highly specialized knowledge.
      • This leaves other degree holders other than Computer Science or Information technology cases like Civil Engineer, Electrical engineer, etc. working as a software engineer may not qualify.
    • Require companies to make “real” offers to “real employees,” by closing loopholes and preventing the displacement of the American worker; and,
    • Enhance DHS’s ability to enforce compliance through worksite inspections and monitor compliance before, during, and after an H1-B petition is approved.
    • Limits the validity period for third-party placement petitions to a maximum of 1 year.
      • This means, H-1B employees from Consulting/Service Companies working as a contract will have petitions approved for a maximum of 1 year.
      • H-1B Employees working directly to U.S companies are exempt and they will avail a normal 3 year period.
  • Wage level increase to H1B, H1B1, E3 and PERM.
    • Currently there are 4 wage levels from entry to Expert level workers. The new rule is changing the way wages for H1B, E3, H1B1, and PERM cases are to be calculated. The approximate level will be adjusted as follows.
    • Wage Level 1 – 17th percentile to the 45th percentile
    • Wage Level 2 – 34th percentile to the 78th percentiles
    • Wage Level 3 – 50th percentile to the 78th percentiles
    • WAGE Level 4 – 67th percentile to the 95th percentile
    • This will significantly increase wages that companies have to pay to those in H1B, H1B, and E3 status while also offering higher wages for Green Cards under the PERM process.
    • The DOL wage regulation will take effect as follows:
      • 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 benefit from the current prevailing wage structure.
      • 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.

The regulation are expected to be challenged in court, if not the DOL wage level rule will take effect immediately upon publication on October 8,2020 and DHS rule on H1B Speciality will take effect from December 2020.

Below is the Snippet of Old Wage level for a Software Developers, Applications position in California.

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