In a victory for legal immigration and particularly staffing employers, the DOL announced today that it was withdrawing its policy memo issued last Fri., which imposed additional requirements on staffing employers and their customers.
On this day, when the legal immigration world should be celebrating an incoming President that, at the very least, will not be anti legal immigration, we are still reading and trying to understand the implications of the new rules announced in the past week. Here is a link to a great summary from our friend Stuart Anderson. Many of the new rules target healthcare and IT occupations and employers. We will provide updates as actions are taken by President Biden.
Yesterday, the DOL issued a new memo explaining that it will start requiring all secondary employers to file LCA’s for contractors placed at their location. The DOL cites to a new USCIS regulation which is expected to be issued on Tues the 19th which changes the definition of an employer. The DOL specifically states that this memo “better comports with the goals of the Executive Branch policy” The new memo will take effect on July 14, 2021. The Wage and Hour Office also issued a Field Assistance Bulletin implementing the above memo. It is expected that the new Biden Administration will examine this new policy.
And you thought he was done. Not even close. When your goal is to destroy legal immigration and make it out of reach for everyone but, the richest, you keep fighting to the end and that is exactly what the Trump Administration is doing. Today, the DOL released in Final Rule format the rule they had released in interim final format in Oct. The new rule will go into effect in 60 days but, the new wages will not be released until July 2021 and there will be a phase-in period. If you recall, that rule was struck down by multiple Federal Courts due to a complete failure to follow the correct legal procedures and the substance of the rule was criticized relative to its faulty assumptions, poor methodology, and math. The DOL “considered” the public comments, in part pointing out the absurdity of having some entry level wages set at $208,000/year, reviewed the decisions from the Federal judges that ruled against them and then dismissed it all and re-issued a very similar rule. To their credit, they did correct some of their math errors. The new methodology sets the wage levels at the 35th,53rd,72nd, and 90th percentiles. A number of the Plaintiffs who pursued federal lawsuits over the interim final rule have already announced that they will be suing again. There is also an expectation that the Biden Administration will take a look at all of the regulations rushed through by the Trump Team so this may all be moot.
Today, the USCIS published a new rule in the Federal Register changing the way that H-1b petitions are chosen in the lottery. The lottery has always been a random selection process however, this new regulation would change the process to a wage based system in which persons being paid at wage level 4 would have a higher chance of selection then someone paid at a level 1 or level 2 wage level. It is believed that the new regulation would all but, eliminate any chance at a person being selected if they are offered a level 1 wage. Level 1 wages are typically offered to new grads (hence the designation Level 1) The new regulation makes it easier for employers based overseas to obtain visas for their key employees while making it harder for international graduates from U.S. schools to obtain a visa. Large outsourcing employers are cheering this change as they will be able to easily take advantage of the new rule whereas smaller employers and those who hire new grads, often in the healthcare industry, are decrying this policy change. Whether or not this policy survives a legal challenge or changes by the Biden Administration remains to be seen.
On Dec 31, 2020, a defeated President Trump fired another salvo at legal immigration by extending the visa ban to March 31,2020. A copy of his proclamation can be found here. The ban prevents the issuance of new H-1b and L-1 visas (among others) and is an extension of the ban issued in June of 2020. U.S. Consulates on Mon. cancelled existing appointments citing the renewed ban. The original ban exempted healthcare workers however, we have had visa appointments for healthcare workers cancelled this week. We are hopeful that this was a Consular error. We are optimistic that the Biden Administration will act quickly after taking office to reverse this ban. For more on this issue, including a nice analysis on the labor data that should be relevant, check out this Forbes article.
A third Federal Court has ruled against the DOL and the Trump Administration for changes made to the DOL’s prevailing wage system. The lead plaintiff was Purdue University but, they were joined by other universities, AILA, and others. This Court even went a step further than the prior courts and ordered the DOL to re-adjudicate all PWD’s issued while the unlawful wages were in use. Forbes published a nice summary of the case. Kudos to all of those who litigated against these unlawful rules designed to gain political points for the election without regard to the harm caused to US businesses and the economy.
On Friday, the DOL, in compliance with a Federal Court order reverted back to the prior wage methodology which has been in effect for decades. When you check the FLCDataCenter now, the “old” wages will appear.
The DOL also announced that it will accept a request for reconsideration of any PWD issued using the “now struck down wages” regardless of when issued, if filed prior to Jan 4, 2021. The DOL did not indicate how long it would take them to re-issue new PWD’s or whether they would make those a priority but, typically a request for reconsideration takes at least 90 days.
Today, a Federal Judge struck down both the new H-1b regulation which was to take effect on 12-7-2020 and the new DOL regulations which took effect back in October. A link to the decision will be provided as soon as it is made available. As a practical matter, we do not know how long it will take the DOL to revert back to the prior system or to re-open PWD’s that may have been issued while the new regulations were in effect. We also, do not know if the Trump Administration will file an appeal during this lame duck period. We will update as developments occur.
Here is a link to the Court order.
We are only a little over a week away from the new H-1b regulations taking effect. On Mon of this week, oral arguments were heard in the Chamber of Commerce vs. DHS et al in the Federal District Court for Northern California. The Chamber along with a number of other business groups are seeking a preliminary injunction blocking the new regulations from taking effect. The reports from multiple sources with information regarding the content presented at the oral argument was that the Chamber’s position seemed very strong while the government’s position seemed weak on both the facts argued and the law required. Forbes published a summary as did Law360. see links embedded. A summary of the litigation in general is available from the Chamber. A ruling can be issued any day. We will update you as developments occur.