H-1B eligibility and wage regulations to be published Thursday

The U.S. Department of Homeland Security (DHS) and Department of Labor (DOL) have posted prepublication versions of two rules 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 will publish them in the Federal Register on Thursday, Oct. 8.

Key Points:

• DOL will publish its wage rule on Thursday, and it will take effect the same day. 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.
• The DHS rule, “Strengthening the H-1B Nonimmigrant Visa Classification Program,” will make significant changes to the H-1B program, including narrowing the definition of “specialty occupation.” It will take effect 60 days after publication.
• 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: The DOL rule will take effect immediately upon publication on Thursday, while the DHS rule will take effect 60 days after publication, i.e., Dec. 7. Members of the public may comment on the rules. Litigation is expected, but it is too early to predict the likelihood of success. Since President Donald 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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