Update: On December 1, 2020, the U.S. District Court for the Northern District of California granted the plaintiffs' motion for partial summary judgement, and set aside both the Department of Labor and Department of Homeland Security interim final rules which had been published on October 8, 2020. This blocks both rules from being enforced or implemented. Read the court's order and judgement, which found that the agencies did not have just cause to promulgate the rules without notice and comment. The case is Chamber of Commerce et al. v. DHS et al., Case No. 4:20-CV-7331 (N.D. Ca., October 19, 2020).
In the final quarter of 2020 we saw a number of rule making initiatives by the Department of Homeland Security (DHS) and Department of Labor (DOL) that impement the H-1B specialty occupation category and to a certain extent the PERM labor certification process:
- On October 8, 2020, both DHS and DOL published separate interim final rules. The DHS rule narrows the definition of H-1B "specialty occupation" and the DOL rule significantly raises prevailing wage determinations when they are based on Occupational Employment Statistics data. Although lawsuits have been filed against both interim final rules and the DOL rule is already in effect, it is still important to consider submitting a comment on each of the interim final rules. Make sure to distinguish the DHS rule from the DOL rule.
- On November 2, 2020, DHS published a proposed rule that would eliminate the random H-1B cap lottery in favor of a selection system that would give preference to high wage offers.
Some people have been referring to these initiatives jointly as "the H-1B rule" or "H-1B rules," but they are separate items at different stages in the rule making process, are published by separate agencies, and have different effects. Being precise when referring to them will help navigate the changes and proposals.
Department of Labor
Interim Final Rule Raises Prevailing Wage Determinations Based on OES Wage Data, Effective October 8, 2020. 85 FR 63872 (October 8, 2020). The Department of Labor (DOL) published an interim final rule that changes how the the four-tier wage-level system utilized when Occupational Employment Statistics (OES) data is used as the wage data source for prevailing wage determinations. This results in significantly higher NPWC prevailing wage determinations in each OES-based wage level. The rule became effective on the date of publication, October 8, 2020, but as an interim final rule the public is able to comment for 30 days even though the rule is already in effect. Comments were due on or before November 9, 2020. NAFSA signed on to two joint comment letters, one led by the Compete America Coalition and one led by the College and University Professional Association for Human Resources (CUPA-HR).
Department of Homeland Security
Interim Final Rule Narrows Definition of Specialty Occupation, Effective December 7, 2020. 85 FR 63918 (October 8, 2020). The Department of Homeland Security (DHS) published an interim final rule (IFR) titled Strengthening the H-1B Nonimmigrant Visa Classification Program. Changes include revised definitions of and standards for a "specialty occupation" and "employer-employee relationship," limited petition validity for third-party placements, and other changes that make use of the H-1B category more challenging. The rule becomes effective automatically on December 7, 2020, but since it is an interim final rule there is a concurrent public comment period ending December 7, 2020. NAFSA signed on to a joint comment letter led by the American Council on Education (ACE).
Proposed Rule Would Eliminate Random H-1B Lottery in Favor of High Wage Preference. 85 FR 69236 (November 2, 2020). In this proposed rule, DHS proposes amending its H-1B cap selection regulations "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." Written comments on this proposed rule must be submitted on or before December 2, 2020.
Litigation - 3 lawsuits
- Chamber of Commerce et al. v. DHS et al., Case No. 4:20-CV-7331 (N.D. Ca., October 19, 2020). Challenges both the DOL and DHS interim final rules. See the U.S. Chamber Litigation Center for more information, including case filings. A hearing on motions for preliminary injunction and partial summary judgement was held on November 23, 2020. The court will consider the motions and issue a written opinion.
- Purdue, et al. v. Scalia, Case No. 1:20-CV-03006 (D.D.C., October 19, 2020). Challenges the DOL rule only. A hearing was scheduled for November 13, 2020, but on November 10, it was cancelled. "In view of the Court's forthcoming Memorandum Opinion and Order, the Court hereby cancels the motion hearing scheduled for November 13, 2020."
- ITServe Alliance Inc., et al. v. Scalia, Case No. 3:20-14604 (D.N.J., October 16, 2020). Challenges the DOL rule only.
All three plaintiff groups have also filed motions for preliminary injunctions asking the courts to halt implementation while litigation proceeds.
- NAFSA co-signed two amicus briefs filed by the American Council on Education (ACE) that support the motions for preliminary injunctions in the California and District of Columbia cases. Read the amicus briefs: filed in the District of Columbia and Northern District of California district courts.
In addition to citing the economic strain caused by the COVID-19 pandemic, DHS and DOL both cite the Buy American Hire American Executive Order 13788 (BAHA, EO 13788) as a primary justification for these actions. On April 18, 2017, President Trump issued Executive Order (E.O.) 13788, Buy American and Hire American, instructing DHS to "propose new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate, to protect the interests of U.S. workers in the administration of our immigration system," and directed DHS and other agencies to "as soon as practicable, suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries." See NAFSA's page on BAHA.
Additionally, on June 22, 2020, President Trump issued Proclamation 10052, Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak, that went into effect on June 24, 2020. See NAFSA's page on Proclamation 10052. Section 2 of Proclamation 10052 suspends "entry into the United States of any alien seeking entry pursuant to any of the following nonimmigrant visas" until December 31, 2020, unless eligibile for an exemption under section 3 of the proclamation:
- "an H-1B or H-2B visa, and any alien accompanying or following to join such alien;"
- "a J visa, to the extent the alien is participating in an intern, trainee, teacher, camp counselor, au pair, or summer work travel program, and any alien accompanying or following to join such alien;"
- "an L visa, and any alien accompanying or following to join such alien"
Section 5 of Proclamation 10052 also called on the agencies to take substantial "additional measures," such as:
- Directing DOL and DHS to ensure compliance with the permanent labor certification (PERM) and temporary labor condition application (LCA) statutory rules that are designed to protect U.S. workers
- Directing DHS and DOS to ensure compliance with biographic and biometric data collection requirements
- Directing DHS to " take appropriate and necessary steps, consistent with applicable law, to prevent certain aliens who have final orders of removal; who are inadmissible or deportable from the United States; or who have been arrested for, charged with, or convicted of a criminal offense in the United States, from obtaining eligibility to work in the United States."
- Directing DHS to "consider promulgating regulations or take other appropriate action regarding the efficient allocation of visas pursuant to section 214(g)(3) of the INA (8 U.S.C. 1184(g)(3)) and ensuring that the presence in the United States of H-1B nonimmigrants does not disadvantage United States workers."