The final quarter of 2020 and the first quarter of 2021 saw a number of rule making initiatives by the Department of Homeland Security (DHS) and Department of Labor (DOL), related to the H-1B specialty occupation category and to a certain extent the PERM labor certification process. This page provides updates on those initiatives.

DOL: Rulemaking to Raise Prevailing Wage Determinations Based on OES Wage Data

Rulemaking status: The October 8, 2020 interim final rule was set aside by federal courts in December, 2020, and the January 14, 2021 final rule was vacated by court order on June 23, 2021. DOL announced: "the operative version of the regulations at 20 CFR 656.40 and 20 CFR 655.731 continues to be the version in place on October 7, 2020, prior to the publication of the IFR."

On January 14, 2021, the Department of Labor (DOL) published a final rule titled Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States, at 86 FR 3608 (January 14, 2021). See NAFSA's page DOL Final Rule on OES-Based Prevailing Wage Determinations for details. This was the Trump administration's response to federal courts having set aside an October 8, 2020 interim final rule (IFR) of the same title. The final rule would have amended 20 CFR 656.40 to change how DOL computed Level I through Level IV wage rates when using Occupational Employment Statistics (OES) wage data to make a National Prevailing Wage Center (NPWC) prevailing wage determination or to certify an LCA that relies on OES wage data. This would result in higher NPWC prevailing wage determinations in each OES-based wage level. The rule had a baseline effective date with an implementation plan in which wage level adjustments would be phased in. Under the Biden Administration, DOL twice delayed the effective date of the January 14, 2021 final rule; see 86 FR 13995 (March 12, 2021) and 86 FR 26164 (May 12, 2021).

On April 2, 2021, DOL published a Request for Information: Data Sources and Methods for Determining Prevailing Wage Levels for the Temporary and Permanent Employment of Certain Immigrants and Non-Immigrants in the United States, related to this rulemaking. NAFSA did not comment, but read the comment submitted by the American Immigration Lawyers Association (AILA) [AILA Doc. No. 21060437].

On June 23, 2021, the U.S. District Court for the Northern District of California issued an order in Chamber of Commerce, et al. v. DHS, et al., No. 4:20-cv-07331, vacating the January 14, 2021 final rule, and remanding the matter back to DOL. The vacatur and remand was in response to DOL's own motion for voluntary remand. On June 29, 2021, DOL announced on its website: "In light of these delays and now the June 23, 2021 order vacating the Final Rule, the operative version of the regulations at 20 CFR 656.40 and 20 CFR 655.731 continues to be the version in place on October 7, 2020, prior to the publication of the IFR."

The DHS/USCIS rule also would have required DOL to develop new policy guidance. DOL withdrew the policy guidance it had developed for this purpose, to allow for the review called for by the Biden Regulatory Freeze memo. The Office of Foreign Labor Certification announced on its web page:

"January 20, 2021. U.S. Department of Labor Withdraws Program Bulletin Announcing Revised Interpretation and New Guidance under the H-1B Visa Program for Review. On January 15, 2021, the U.S. Department of Labor (Department) issued an Office of Foreign Labor Certification H-1B Program Bulletin and a Wage and Hour Division Field Assistance Bulletin (FAB) revising its interpretation of its regulations concerning which employers of H-1B workers must file Labor Condition Applications. The Department simultaneously submitted a Notice for publication in the Federal Register announcing and requesting public comments on this interpretation. On January 20, 2021, the Department withdrew its Notice from the Office of the Federal Register prior to its publication, and is now withdrawing the Bulletin and FAB for the purpose of considering the process for issuing this interpretation as well as reviewing related issues of law, fact, and policy. Accordingly, the requirements of the Bulletin and FAB are no longer in effect. The Department will notify the public of any further actions as appropriate once it completes its review."

USCIS: Rulemaking to Eliminate Random H-1B Lottery in Favor of High Wage Preference

Rulemaking status: The effective date of this final rule was delayed until December 31, 2021.

On January 8, 2021, DHS/USCIS published a final rule at 86 FR 1676 with a March 9, 2021 effective date, titled Modification of Registration Requirement for Petitioners Seeking To File Cap-Subject H-1B Petitions. The final rule would modify the H-1B cap-subject pre-registration requirement "by generally first selecting registrations based on the highest Occupational Employment Statistics (OES) prevailing wage level that the proffered wage equals or exceeds for the relevant Standard Occupational Classification (SOC) code and area(s) of intended employment." Currently, cap-subject registrations received during the registration period are counted in a random selection process.

  • Because this DHS rule was published in the Federal Register but had not yet gone into effect, paragraph 3 of the Biden Administration's January 20, 2021 Regulatory Freeze Pending Review memorandum resulted in the rule's March 9, 2021 effective date being postponed until December 31, 2021, through a final rule to be published in the Federal Register on February 8, 2021. This means that for the upcoming FY 2022 H-1B cap season, "USCIS will apply the current regulations (random selection)" to any H-1B cap registration period that takes place before December 31, 2021.
  • See NAFSA's page for details.

Rulemaking To Narrow Use of H-1B

Rulemaking status: The October 8, 2020 interim final rule was set aside by a federal court on December 1, 2020. Movement towards publication of a final rule has been delayed while it is reviewed under the Biden administration's regulatory freeze memorandum. A May 19, 2021 final rule restored the regulations to the state prior to the October 8, 2021 interim final rule.

On January 15, 2021, DHS/USCIS released an advance copy of a final rule titled Strengthening the H-1B Nonimmigrant Visa Classification Program, which was the Trump administration's response to a federal court having set aside the October 8, 2020 interim final rule of the same title (See court's order in Chamber of Commerce of the United State of America et al. v. United States Department of Homeland Security, et al., No. 4:20-cv-07331 (N.D. Cal. Dec. 1, 2020)). The replacement rule was never published in the Federal Register, and on May 19, 2021, USCIS published a final rule at 86 FR 27027 that "removes from the Code of Federal Regulations an interim final rule (IFR) issued in October 2020, which has since been vacated by a federal district court." The May 19, 2021 final rule restores the regulations to the state prior to the October 8, 2021 interim final rule.

The October 8, 2020 USCIS interim final rule also required DOL to develop new policy guidance. DOL did so, but subsequently withdrew that guidance. The Office of Foreign Labor Certification announced on its web page:

"January 20, 2021. U.S. Department of Labor Withdraws Program Bulletin Announcing Revised Interpretation and New Guidance under the H-1B Visa Program for Review. On January 15, 2021, the U.S. Department of Labor (Department) issued an Office of Foreign Labor Certification H-1B Program Bulletin and a Wage and Hour Division Field Assistance Bulletin (FAB) revising its interpretation of its regulations concerning which employers of H-1B workers must file Labor Condition Applications. The Department simultaneously submitted a Notice for publication in the Federal Register announcing and requesting public comments on this interpretation. On January 20, 2021, the Department withdrew its Notice from the Office of the Federal Register prior to its publication, and is now withdrawing the Bulletin and FAB for the purpose of considering the process for issuing this interpretation as well as reviewing related issues of law, fact, and policy. Accordingly, the requirements of the Bulletin and FAB are no longer in effect. The Department will notify the public of any further actions as appropriate once it completes its review."

Contributions of Interest