DHS and DOL Narrow Pathway for H-1B Nonimmigrant Visas

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The current administration recently issued two interim final rules (IFR) largely impacting H-1B nonimmigrant visas, making it more difficult for individuals to obtain them.

Effective December 7, 2020, the Department of Homeland Security’s (DHS) IFR revises certain definitions, updates application requirements, and provides USCIS with broader authority to verify an application. In part, it lists specific factors USCIS will consider when determining whether a valid employment relationship exists, including supervision, location of supervision, right to control work on a day-to-day basis, provision of tools/instrumentalities, hire/pay/fire relationship, evaluation of work product, provision of employee benefits, use of proprietary information to perform work, end product linked to line of business, and control of manner and means in which work is performed. It also narrowed the definitions of specialty occupation and third-party worksite. Notably, a third-party worksite cannot be a residence, and visas for workers at third-party worksites are only valid for one year at a time. The IFR also provides specific instructions for documentation that must be submitted with the visa application.

Effective October 8, 2020, the U.S. Department of Labor’s (DOL) IFR increased required wage levels for labor condition applications (LCAs) for H-1B, H-1B1, and E-3 visas, and PERM labor certifications as follows:

  • Level 1 wages from the 17th percentile to the 45th percentile.
  • Level 2 wages from the 34th percentile to the 62nd percentile.
  • Level 3 wages from the 50th percentile to the 78th percentile.
  • Level 4 wages from the 67th percentile to the 95th percentile.

These rules apply to petitions and LCAs filed on or after their effective dates, so they will impact 2022 visas since the deadline for 2021 visa applications passed earlier this year. However, there is already pending litigation challenging these IFR’s. Continue to look for updates on this changing subject.

Action Items

  1. Review visa applications with legal counsel for compliance.
  2. Review fiscal budget for increased wage requirements.
  3. Assess workforce planning for 2022 in light of changes.
  4. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.
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