USCIS and DOL regulations that impact the H-1B visa program and permanent residency sponsorship
On October 8, 2020, two new Interim Final Rules were published in the Federal Register that are expected to impact JHU’s ability to sponsor H-1B temporary workers and may impact some individuals who JHU wishes to sponsor for permanent residency. These rules were issued without advanced notice; one was effective Thursday, October 8 and the other is effective 60 days from rule publication (December 7). Please find a very brief summary of each rule below. We understand that these rules are complex, and we are continuing to work through them and evaluate their likely impact on the scope and breadth of our nonimmigrant visa population and processing implications. This communication is meant to give you notice of these rules only. Given the time frame in which they have been issued and their potentially significant impact, we expect a continuing dialogue around these rules. We will update you as things develop. We also invite you to contact OIS with questions.
While we are current as of Thursday, October 8 in processing impacted immigration-related forms for our applicants, these rules will affect some future applications.
Department of Labor Rule: Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens
The Department of Labor (DOL) is amending Employment and Training Administration regulations governing the prevailing wages for employment opportunities that U.S. employers seek to fill with foreign workers on a permanent or temporary basis through certain employment-based immigrant visas or through H-1B, H-1B1, or E-3 nonimmigrant visas. Per DOL, the prevailing wage rate had been defined as the average wage paid to similarly-employed workers in a specific occupation in the area of intended employment. Specifically, DOL is amending its regulations governing permanent labor certifications and Labor Condition Applications to incorporate changes to the computation of wage levels under the Department’s four-tiered wage structure based on the Occupational Employment Statistics (OES) wage survey administered by the Bureau of Labor Statistics.
While we cannot predict with certainty how this will impact individual cases, the anticipated end result will be significantly higher wage requirements for all new H-1B cases filed by employers including new H-1B employment, extensions of H-1B status, and amendments of H-1B employment. We are still evaluating the potential implications and impact this will have on our nonimmigrant visa population, and are in discussion with University stakeholders and our national associations. This rule is effective on the date of publication, Thursday, October 8, 2020.
Department of Homeland Security Rule: Strengthening the H-1B Nonimmigrant Visa Classification Program
The Department of Homeland Security (DHS), is amending certain DHS regulations governing the H-1B nonimmigrant visa program. Changes include, but are not limited to: DHS revision of the regulatory definition of and standards for a “specialty occupation” to better align with the statutory definition of the term according to DHS; added definitions for “worksite” and “third-party worksite”; a revised definition of “United States employer”; clarification for how U.S. Citizenship and Immigration Services (USCIS) will determine whether there is an “employer-employee relationship” between the petitioner and the beneficiary; a requirement for corroborating evidence of work in a specialty occupation; and codification of USCIS’ H-1B site visit authority, including the potential consequences of refusing a site visit.
This rule is not expected to have as significant an impact as the above-mentioned DOL rule; however, the narrowed standards for a “specialty occupation” may impact some positions that JHU would normally sponsor for H-1B status. In addition, the requirement for “corroborating evidence” may increase the burden placed on JHU departments that wish to sponsor H-1B employees and, in some cases, increase the overall cost of sponsorship. This rule is effective after the 60-day comment period ends, on Monday, December 7.
The Office of International Services [OIS] will continue to accept and prepare H-1B petitions, and where the new DOL and DHS rule requirements can be met, we will continue to submit H-1B applications to USCIS. Where DOL and DHS rule requirements cannot be met, we will evaluate if any alternate immigration sponsorship options exist and advise accordingly. Please note, the OIS cannot make preliminary wage determinations, or speculate on possible wage requirements. Only with a completed H-1B sponsorship request can we perform the necessary wage analysis to support H-1B sponsorship.
We will provide an update as more becomes known of the impacts of these new rules. We also anticipate litigation will be filed against these rules, and will continue to monitor the legal process.
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