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Changes to Prevailing Wages and the H-1B Nonimmigrant Visa Program

October 7, 2020
Immigration Advisory

UPDATE: On December 1, 2020 the U.S. District Court set aside the Department of Labor interim rule, expected to make changes to its prevailing wage database to reflect the lower wage requirements. The decision also prevents the scheduled December 8 implementation of H-1B regulatory changes to the "specialty occupation" definition and the one-year limit for third-party placements

The Department of Labor announced a new rule effective October 8, 2020 that changes wage calculations, resulting in higher prevailing wages across all occupational categories. This change will increase the required minimum wage required for H-1B employees and the permanent residence process. The new increased prevailing wages will apply for all Labor Condition Applications (LCA) filed after October 8, 2020 and all prevailing wages issued after October 8, 2020. This increase does not apply to already certified LCAs, approved H-1Bs or issued wage determinations.

Additionally, the Department of Homeland Security announced changes that will go into effect early December 2020. These changes impact the H-1B eligibility criteria by:

  • narrowing the definition of “specialty occupation” to prevent general degrees (Business Administration, Liberal Arts) from qualification;
  • adding new definitions to distinguish a “worksite” from a “third-party worksite;”
  • clarifying U.S. Citizenship and Immigration Services criteria for determining whether a valid employer-employee relationship exists; and
  • limiting the H-1B approval validity period for third-party worksites to a one year maximum.

These changes do not impact individuals that are currently in valid H-1B status but will impact H-1B extensions and new applications.

We expect both rules to be challenged and will provide updates. Please contact your Varnum immigration attorney if you have questions.

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