Immigration agencies to publish H-1B eligibility, wage regulations

The U.S. Department of Homeland Security (DHS) and Department of Labor (DOL) will publish regulations in the coming days that will amend H-1B eligibility criteria and wage requirements for the H-1B, H-1B1, and E-3 categories and permanent labor certifications (PERM). The agencies announced the rules today, but have not yet officially published them.

Key Points:

• DOL’s announcement includes an advance copy of its wage rule. DOL expects to publish the rule on Thursday, and it will take effect upon publication with no delayed effective date. The rule restructures the wage leveling system by which employers determine required wages under the H-1B, H-1B1, and E-3 nonimmigrant programs and PERM applications.
• DHS announced that its regulation will have a 60-day delayed effective date. The text of the DHS rule is not yet available. The agency’s summary indicates it will make significant changes to the H-1B program, including narrowing the definition of “specialty occupation.”
• Both rules are Interim Final Rules, which means the agencies find “for good cause” that a comment period would be “impracticable, unnecessary, or contrary to the public interest.” The agencies will still accept comments from the public, but will argue that they need not consider the comments before implementing the rules.
• Litigation is expected.

BAL Analysis: Both agencies are expected to post the text of the rules in the coming days for public inspection, and then will officially publish them in the Federal Register. The DOL rule will take effect immediately upon publication, while the DHS rule will take effect 60 days after publication. Members of the public may comment on the rules. Litigation is expected, though it is too early to predict the likelihood of success. Since President Trump signed the “Buy American and Hire American” Executive Order in 2017, the administration has indicated plans to impose stricter eligibility and wage requirements in high-skilled immigration categories. BAL is continuing to assess the impact of these regulations and will provide additional analysis in the coming days.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

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