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Federal Court Invalidated New Prevailing Wage and H-1B Rules

A federal district court in California issued a ruling today setting aside both DOL Prevailing Wage Interim Final Rule and DHS H-1B Specialty Occupation Interim Final Rule. The DOL Prevailing Wage Interim Final Rule which took effect on 10/08/2020 changed the prevailing wage levels for H-1B, E-3, and H-1B1 and PERM cases, resulting in higher OES-based prevailing wages. Today’s court ruling is immediately effective, invalidating the DOL and DHS rules, but the government is expected to appeal the decision soon. It is still unknown when DOL will revert the OES prevailing wage online data or how it will treat the pending LCAs and prevailing wage requests, but we expect the detailed approaches to be published soon. This year, we’ve seen many drastic measures taken on immigration issues, and here is an overview of the policies that are still pending or may have updates soon.

  • Presidential Proclamation 10014 and 10052 suspend immigration in response to the COVID-19 crisis as an effort to mitigate the consequences of the pandemic on the U.S. economy and labor force. The limitation restricts specifically aliens currently outside the US who do not have a valid nonimmigrant visa already or an official travel document. The specific visas restricted are the following: H-1B, H-2B, J, and L visas. There are a few exceptions that can apply to applicants seeking to resume ongoing employment in the US, public health or healthcare professionals, etc. These Proclamations are set to expire on December 31, 2020. It is very likely that they will be extended by the current Administration, and it will depend on the new Administration if they will be rescinded.

  • USCIS Fee Rule was scheduled to take effect on October 2, 2020 which would change the fee schedule and several form versions. However, on September 29, 2020, a district court stayed the implementation so that the increased fees and new form versions cannot be implemented by USCIS.

  • The DHS/USCIS H-1B Lottery Proposed Rule plans to prioritize the selection of H-1B registrations based on employers who pay the highest wages, replacing the current random selection process with a new wage-based selection process. The comment period closes on 12/2/20. These rules will be very difficult to take effect as there are still multiple steps before it can be finalized.

  • DHS/USCIS Proposed Rule Rescinding H-4 EADs has been sent to OIRA and now it is still pending OIRA review. These regulations will also be difficult to finalize.

  • Covid-19 Travel Bans restrict travelers who have been physically present in Brazil, China, Iran, Ireland, the European Schengen Area or the United Kingdom within 14 days from entry into the US, unless they qualify for an exception. These travel bans are still in effect.

We will continue to monitor all changes to visa and immigration policy and send you the most up-to-date information.

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