DHS and DOL to Publish Interim Final Rules on H-1Bs and Prevailing Wages

On October 8th, the Department of Homeland Security (DHS) and the Department of Labor (DOL) are set to publish two interim final rules impacting the H-1B program and the prevailing wage system.

The DHS rule, Strengthening the H-1B Nonimmigrant Visa Classification Program, aims to clarify the definitions of “specialty occupation” and “employer-employee relationships” in order to “strengthen the integrity of the H-1B program,” while limiting the employment authorization of workers at third party sites to 1 year periods. This rule will be effective 60 days after the publication date and will not apply to any pending or previously approved petitions.

The DOL rule, Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States, will change prevailing wage levels for Labor Condition Applications (LCAs) and Prevailing Wage Determinations (ETA-9141) for PERM applications.  Specifically, the 4-level prevailing wage system will change from being set at the 17th, 34th, 50th, and 67th percentiles to the 45th, 62nd, 78th, and 95th percentiles (i.e., the new level-1 prevailing wage will be nearly as high as the current level-3 prevailing wage). This rule is set to take effect on October 8th, and new wage levels will only apply to LCAs filed on or after the effective date, and PWDs pending or filed as of the effective date.

Given the lack of a notice and public comment period prior to publication, litigation from various stakeholders to block DHS and DOL from implementing these rules is all but certain. We will continue to provide updates as they are available.