USCIS Rule Revising Definition of "Specialty Occupation" and Department of Labor Rule on Computation of Prevailing Wages

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On October 8, 2020, Department of Homeland Security (DHS) issued the “Strengthening the H-1B Nonimmigrant Visa Classification Program” Interim Final Rule revising the definition of "Specialty Occupation," and the Department of Labor (DOL) issued the “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States” Interim Final Rule, amending the regulations governing permanent labor certifications and Labor Condition Applications to incorporate changes to the computation of prevailing wage levels. DHS states that the new H-1B rule will take effect in 60 days, or Dec. 7, 2020 and will:

  • Narrow the definition of “specialty occupation”;

  • Require companies to make “real” offers to “real employees”; and,

  • Enhance DHS’s ability to enforce compliance through worksite inspections and monitor compliance before, during, and after an H1-B petition is approved.

The DOL interim final rule amending the regulations governing permanent labor certifications and Labor Condition Applications incorporates changes to the computation of prevailing wage levels took effect on October 8, 2020.  The changes are having a dramatic impact on the minimum prevailing wage causing increases of tens of thousands of dollars. The interim final rule applies to the following:

  • Any new or pending Application for Prevailing Wage Determinations Form ETA-9141, used to support a labor certification or PERM application filed with the DOL’s National Prevailing Wage Center (NPWC) as of the effective date of the regulation;

  • A Labor Condition Application for Nonimmigrant Workers (LCA), Form ETA-9035/9035E (required to submit with an H-1B petition), filed with DOL on or after the effective date of the regulation where the government’s Occupational Employment Statistics survey data is the prevailing wage source, and where the employer did not obtain the prevailing wage determination from the NPWC prior to the effective date of the regulation.

One strategy to mitigate the effects of the new rule is to utilize alternative or private wage surveys.  Alternative surveys have always been allowed but employers may see pushback from DOL on whether the survey meets the regulatory requirements. 

Iandoli Desai & Cronin will continue to monitor the situation and provide updates as these new rules go into effect.