The final quarter of 2020 through the final days of the Trump Administration saw a number of rule making initiatives by the Department of Homeland Security (DHS) and Department of Labor (DOL), affecting the H-1B specialty occupation category and to a certain extent the PERM labor certification process. This page provides updates on those initiatives under the Biden Administration.
Rulemaking to Raise Prevailing Wage Determinations Based on OES Wage Data
On January 14, 2021, the Department of Labor 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, which was the Trump administration's response to federal courts having set aside an October 8, 2020 interim final rule of the same title. The January 14, 2021 final rule had an effective date of March 15, 2021, but contained a phased implementation plan in which wage level adjustments would not begin until July 1, 2021 or after. The rule sought to change how DOL computes Level I through Level IV wage rates when it uses 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.
- Because this DOL rule was published in the Federal Register but had an effective date after January 20, 2021, paragraph 3 of the Biden Administration's January 20, 2021 Regulatory Freeze Pending Review memorandum resulted in the rule's effective date being postponed, and the rule being reviewed for "any questions of fact, law, and policy."
- On February 1, 2021, the Department of Labor/Employment and Training Administration (DOL-ETA) published a notice in the Federal Register proposing a 60-day delay of the final rule's effective date, with a 15-day request for comments regarding the proposed delay. Read the notice, published at 86 FR 7656 (February 1, 2021). DOL-ETA proposes delaying the effective date of the January 14, 2021 rule for 60 days, from March 15, 2021 to May 14, 2021, stating:
"In accordance with the Presidential directive as expressed in the memorandum of January 20, 2021, from the Assistant to the President and Chief of Staff, entitled “Regulatory Freeze Pending Review,” this action proposes, following a 15 day comment period, to further delay until May 14, 2021, the effective date of the rule entitled Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States, published in the Federal Register on January 14, 2021. The current effective date is March 15, 2021. This proposed delay of 60 days will allow agency officials the opportunity to review any questions of fact, law, or policy the rule may raise... The Department invites written comments on the proposed delayed effective date from interested parties. Written comments must be received by (postmarked, sent, or received) by February 16, 2021."
Rulemaking To Narrow Use of H-1B
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.
Because this DHS rule was not published in the Federal Register, paragraph 1 of the Biden Administration's January 20, 2021 Regulatory Freeze Pending Review memorandum will likely result in the rule being held "until a department or agency head appointed or designated by the President after noon on January 20, 2021, reviews and approves the rule..."
The DHS/USCIS rule also would have required DOL to develop new policy guidance. Because the Biden Administration's Regulatory Freeze memo applies to both DHS and DOL, DOL withdrew the policy guidance it had developed for this purpose, to allow for the review called for by the 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."
Rulemaking to Eliminate Random H-1B Lottery in Favor of High Wage Preference
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.
Contributions of Interest
- 4 ways the Biden administration can improve the employment-based immigration system without Congress. Report. The Brookings Institution. By Dan Berger, Steve Yale-Loehr, Emily Hindle, and Hun Lee Thursday (January 28, 2021)