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

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. This was the Trump administration's response to federal courts having set aside an October 8, 2020 interim final rule of the same title. The final rule would 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. The rule had a baseline effective date with an implementation plan in which wage level adjustments would be phased in. See NAFSA's page DOL Final Rule on OES-Based Prevailing Wage Determinations for details.

  • Read the final rule at 86 FR 3608 (January 14, 2021), now effective on May 14, 2021 with an implementation transition phase-in start date of July 1, 2021.
  • 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 proposed delaying the effective date of the January 14, 2021 rule for 60 days, from March 15, 2021 to May 14, 2021. DOL-ETA received 57 comments. On March 10, 2021, AILA and the American Immigration Council submitted detailed comments, urging DHS to delay the effective date until December 31, 2021 and to take steps to rescind the rule.
  • On March 12, 2021, despite comments received, DOL-ETA published a final rule that did not modify the proposed rule's 60-day delay plan, and set the effective date of the Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States rule [86 FR 3608 (January 14, 2021)] at May 14, 2021, with transition periods starting July 1, 2021.
  • On March 22, 2021, DOL published a proposed rule at 86 FR 3608 (March 22, 2021), proposing "to further delay the effective date of the rule by eighteen months or until November 14, 2022, along with corresponding proposed delays to the rule’s transition date." Under the proposed rule, the Step 1 transition phase would begin on January 1, 2023 and the other transition dates would also be delayed accordingly. Comments on the delayed effective date proposal must be received on or before April 21, 2021.
    • See the DOL press release on its proposal to further delay the effective dates of the final rule.
  • On March 23, 2021, DOL submitted to OMB for review of a "prerule" notice on the Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States rulemaking. OIRA/OMB FAQs describe the pre-rule stage of rulemaking: "Pre-rule (or advance notice of proposed rulemaking) - Agencies undertake this type of action to solicit public comment on whether or not, or how best, to initiate a rulemaking. Such actions occur prior to the proposed rule stage."
  • On April 2, 2021, DOL published in the Federal Register 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, which is consistent with the "pre-rule" stage of rule development. The public inspection version of the request for information was made available on April 1, 2021. The public will have 60 days to comment:

"The Department of Labor (Department) invites interested parties to provide information on the sources of data and methodologies for determining prevailing wage levels covering employment opportunities that United States (U.S.) employers seek to fill with foreign workers on a permanent or temporary basis through certain employment-based immigrant visas or through H–1B, H–1B1, E–3 nonimmigrant visas. The information received in response to this RFI will inform and be considered by the Department as it reviews the final 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, which may result in the development of a future notice of proposed rulemaking to revise the computation of prevailing wage levels in a manner that more effectively ensures the employment of certain immigrant and nonimmigrant workers does not adversely affect the wages of U.S. workers similarly employed."

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."

USCIS: 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.
  • See NAFSA's page for details.

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."

Contributions of Interest