New H-1B and Prevailing Wage Regulations

As you may know, USCIS implemented new regulations on the H-1B process, and the DOL implemented new regulations on the Prevailing Wage process. While there is at least one Court Case pending seeking an injunction on both of these regulations, it is still worthwhile going through the major changed made by both these regulations

Prevailing Wage Regulations

First, in terms of the Prevailing Wage regulations, the simple result is that the prevailing wage will be going up quite a bit. The old system used the 17th percentile for level one. The new one uses the 45th percentile – quite a difference and resulting in higher wages for low-level workers. It should be noted that private wage surveys can still be used to show that the DOL Prevailing Wage is incorrect.

It is interesting to note that in justifying this increase, USCIS cites only one report – and that one report sites to only one instance where the current prevailing wage model MAY provide a wage lower than that actually prevailing in a given geographic area (and I say may because the example is not very clear nor does it seem to actually provide the correct information).

H-1B Regulations

For the H-1B regulations, there are several major changes.

  1. There will now have to be a direct relationship between the field of the degrees and the duties: While this may not sound restrictive, it is. This is USCIS’s way of trying to require sub-specialization. In other words, for example, you cannot say that a position would require an engineering degree – you would need to specify the specific engineering degree (mechanical, electrical, etc.) and show how that relates to the duties – same if you say that more than one such specialization would be ok – you need to show how each degree relates to the duties. General degrees are no longer acceptable as well
  2. Bachelor’s degree is always required: No longer can just show that it is usually required for the occupation/position, but you must show that it is always required for entry into the occupation or position. So positions that are listed as “usually” or “normally” requiring a bachelor’s will no longer be sufficient. Likewise,
  3. Provides a new definition of US Employer: This definition, among other things, will define the employer-employee relationship. It will allow USCIS to weigh the various factors as they will actually be in the position – in other words, the question is not whether the employer has the “right” to control the employee or the “right” to provide the instruments or tools for the employee to work, but whether the employer does or will actually do such things in the real world. It also lists additional factors they will look at to show that the person is actually being supervised by the sponsor and not another party.
  4. Contracts: Third-party placement will require contracts and will only be good for 1 year or the length of the contract – whichever is shorter. Also, the contract needs to list the requirements of the position as imposed by the third-party.
  5. Site Visits: If the third party refuses to allow a site visit, USICS can (and most likely will) deny or revoke the H-1B.

The above are the major, but by no means all, the changes made by the regulations. Many of the above changes were attempted by USCIS through various policy memorandum. However the Courts clearly stated that they could not make such changes via memo, so now USCIS is seeking to make those changes via regulations.

Lastly, it should be noted that both these regulations are currently in effect. USCIS and the DOL felt that they were of such importance that they required immediate implementation, forgoing the usual comment and revision period.

If you are affected by any of these changes, please set up a time to talk with me via the links on this webpage. We are happy to discuss how these regulations may impact you and ways to prevent such impacts.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.


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