The DOL announced yesterday that they have sent a proposed regulation to the OMB for final review and publication. The contents of the regulation have not been made public but, the stated purpose is to restrict H-1b visas to only those highly compensated. Currently, the DOL has 4 wage levels for H-1b petitions and the prevailing wage is based upon the geographical location, the occupation and the level of experience and education needed to perform the job duties. The required wage also takes into consideration any CBA and the wages paid to other US employees in similar positions. Trump has often remarked that he thinks the visas should be restricted to those being paid in excess of $100,000/yr. This approach would have a disproportionate negative impact on certain industries such as healthcare and research. It would also have a greater impact on positions located in rural areas or frankly, anywhere not on the Coast. Another speculation is a change to the way in which the H-1b cap lottery is conducted to start with Level 4 and then proceed downward which would essentially eliminate new grads from consideration. At this point, it is all just speculation. What we do know is that just like the new specialty occupation regulation also at the OMB, this regulation is expected to be released as an Interim Final Rule (IFR) thereby skipping the public comment period and ignoring long-standing rules required under the APA. Publishing the rule as an IFR is asking for a Federal lawsuit to be filed so any rule released is likely to be short-lived but, if your entire purpose is to create campaign fodder, then this may be very effective.
It is being widely reported that wide-sweeping changes to the H-1b visa regulations have now been sent to the Office of Management and Budget (OMB) for final review. It is being reported that the new regulations will be released as an interim final rule with immediate effect. There will be no comment period. The timing could be up to 90 days under normal circumstances but, is being fast tracked by the White House and they are expected to be released by the end of Sept. The exact language has not been released but, several sources are reporting that the new regulations will restrict the placement of an H-1b worker at a 3rd party site unless the 3rd party jointly files the LCA and agrees to comply with all of the LCA requirements/obligations thus creating a co-employment situation. We do not expect any 3rd party worksite to be willing to agree to such a condition. This rule would effectively end the use of H-1b’s by staffing cos. Other industries are not exempt from the proposed changes as additional restrictions have been promised on minimum salary levels and a change to the definition of specialty occupation. Again, the exact language has not been released so details on these changes are not available. Litigation is expected shortly after the rules are released. Blatantly ignoring the Administrative Procedures Act and the Notice and Comment period may indicate that the timing of this rule is not designed to effectuate a long-lasting change but, rather campaign fodder. The Trump Administration has long sought to significantly reduce legal immigration and to specifically restrict the use of the H-1b and L work visas. If you are a U.S. employer and you believe the use of H-1b visas provides you access to much needed talent, we would encourage you to reach out to your various trade associations and encourage them to fight against these proposed rules. We will provide updates as they become available.
Update from NAFSA
On August 25, 2016, the Office of Management and Budget (OMB) approved a revised Form I-9, Employment Eligibility Verification. The new Form I-9 must be published by November 22, 2016. Employer can continue to use the current form until January 21, 2017. After that date, the new Form I-9 must be used. No other editions will be valid.
It has been reported by the American Immigration Lawyers Association (AILA) that the Office of Management and Budget (OMB) has cleared for publication an interim regulation titled “Petitions Filed on Behalf of H-1B Temporary Workers Subject to the Annual Numerical Limitation.” It is believed that this rule addresses the filing of duplicate petitions in the upcoming H-1B “lottery.” Given that April 1 is only a few days away, it is anticipated that the regulation will be cleared by the USCIS quickly and be published in the Federal Register, whereupon, it will become effective. We will keep you updated as developments occur.