In a previous blog post, we noted the big changes coming for employment visas and H-1B’s based upon presidential proclamations issued last year. In that post we noted some of the rules may be withdrawn or delayed by the new administration. Here is the post-inaugural update.
On January 20, 2021, White House Chief of Staff Ron Klain issued a memorandum stating in part that: 1. All rules pending but not yet published must be immediately withdrawn; and 2. Agencies must “consider” postponing for 60 days the effective dates for regulations that have already been published, but not yet taken effect.
As a result, the Strengthening the H-1B Nonimmigrant Visa Classification Program Final Rule is withdrawn, and the agency rule regarding the H-1B wage selection may be postponed upon further agency action until March 21, 2021.
On January 14, 2021, the Department of Labor did publish a rule revising the method by which the prevailing wage is determined for permanent labor certifications and the Labor Condition Application used for several types of visas, including H-1B status. The rule is to take effect on March 15, 2021, but employers are not required to use this wage rate until July 1, 2021.
Because the rule was already published prior to the issuance of the January 20th memorandum, but had not yet taken effect, it is not withdrawn, but the Department of Labor has instructed that employers now are not required to comply with the new wage rule until July 1st.
Labor Condition Application Requirements
On January 20, 2021, the Department of Labor withdrew its bulletin of January 15th regarding which H-1B employers must file a Labor Condition Application. The Department has withdrawn the proposed re-interpretation of its regulations for the purpose of considering the process by which it is issued, as well as reviewing related issues of law, fact, and policy. As a result, the requirements stated in the bulletin are no longer in effect.
What Should You Do?
You can expect an upcoming post from us regarding using an alternative wage survey to determine the prevailing wage rather than using the OES wage survey. In light of the new methodology the government will use to determine the prevailing wage, we expect alternate wage surveys to be used much more frequently than in the past. We will explain the requirements for the survey to be accepted when this has been finalized.