Court Rulings Halt Implementation of Recent H-1B/DOL/Prevailing Wage Interim Final Rules
As a result of a court ruling on December 1, 2020, the two rules affecting the H-1B and E-3 visa programs, and PERM Labor Certifications that were described in our Update of October 21, 2020, are no longer in effect. The rules affected are:
- The US Department of Labor Interim (DOL) Rule “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the US”, changed the methodology by which the DOL calculated prevailing wage determinations; and
- The US Department of Homeland Security Rule (DHS) “Strengthening the H-1B Nonimmigrant Visa Classification Program”, amended the definition and standards of “specialty occupations.”
A U.S. District Court in California set aside the rules, finding that relevant federal agencies did not follow proper procedures when the Interim Final Rules were issued in October. Therefore, the definition and standards of “specialty occupations” revert to the previous longstanding definition and standards and the DOL can no longer use a methodology that resulted in substantially higher prevailing wage determinations. The data system will revert to the previous wage data, anticipated within the next several days, and the MIT International Scholars Office will resume submitting prevailing wage requests for use in H-1B and E-3 visa cases.
The agencies may try to appeal these rulings, or republish rules in a different form, but they are unlikely to be able to get the rules back into effect in the remaining days of the current Administration.
To read a copy of the court decision, click here.
To view a summary, and links to resources, provided by NAFSA: Association of International Educators, click here.