Thursday, January 21, 2021

A LOOK BACK, AND A LOOK AHEAD

Join is for a review of some of the immigration changes that took place in 2020 and a look forward to the changes coming in 2021, specifically for the H-1B cap. Interested clients and friends can register for our webinar by clicking on the link below.

REGISTER HERE

MU Law will be hosting a free webinar for our clients and friends on Tuesday, January 26, 2021 at 2PM Eastern (1PM Central).

Join us for this FREE webinar to learn more about:

  • H-1B Cap Basics, Registration Process, and Projections
  • NEW RULE: H-1B lottery system, selection by wage
  • NEW RULE: DOL Rule Regarding Calculation of Prevailing Wage
  • H-1B Specialty Occupation
  • H-1B Dependency
  • H-1B issues for Staffing Companies and Third-Party Placement
  • Third- Party Placement v. In-House work?
  • Employer-Employee Relationships
  • Cap-Gap for F-1s
  • CPT / OPT Maintenance
  • Top 10 things H-1B employers can do to stay compliant

PLEASE JOIN US! 

Tuesday, January 19, 2021

DOL DRAMATICALLY RAISES PREVAILING WAGES

DOL DRAMATICALLY RAISES PREVAILING WAGES

On January 14, 2021 the US Department of Labor (DOL) published its Final Rule regarding the calculation of prevailing wages.  Readers of our blog will note that the DOL previously issued an Interim Rule about calculation of prevailing wages which was struck down by Federal Judges late last year.  The Final Rule published on January 14, 2021 is the updated version of the Interim Rule.

 

Summary of the Final Rule

The Final Rule will dramatically change the calculation of prevailing wage levels resulting in significantly higher prevailing wages.  While the new percentiles are lower than the October 2020 Interim Rule’s percentiles, the new percentiles are still considerably higher than the current percentiles. 

 

Wage Level

Current Percentile

October 2020 Interim Rule Percentile

January 2021 Final Rule Percentile

1

17

45

35

2

34

62

53

3

50

78

72

4

67

95

90

 

The Final Rule applies to prevailing wages applicable to applications for H-1Bs, H-1B1s, E-3s, and Green Cards.

 

Transition Periods

The Final Rule attempts to provide employers and foreign nationals an opportunity to adapt to the change in calculations.  For those who did not have an I-140 approval in hand as of October 8, 2020, the transition will occur over an eighteen-month period:

  • Stage One, Present to June 30, 2021: Current Percentiles remain in effect
  • Stage Two, July 1, 2021 to June 30, 2022: 90% of the Final Rule percentile
  • Stage Three, July 1, 2022 and Beyond: 100% of the Final Rule percentile

For those who did have an I-140 approval in hand as of October 8, 2020, and so are applying for a post-six year H-1B extension, the transition will occur over an three and a half year period:

  • Stage One, Present to June 30, 2021: Current Percentiles remain in effect
  • Stage Two, July 1, 2021 to June 30, 2022:85% of the Final Rule percentile
  • Stage Three, July 1, 2022 and Beyond: 90% of the Final Rule percentile
  • Stage Four, July 1, 2023 and Beyond: 95% of the Final Rule percentile
  • Stage Five, July 1, 2024 and Beyond: 100% of the Final Rule percentile

The American Immigration Lawyers’ Association (AILA) reported that President-Elect Biden’s transition team will issue an immediate 60-day delay to the implementation of this and other last-minute regulations promulgated by the Trump presidency, but how the Biden Administration will move forward remains unknown.

 

Alternative Wage Surveys

Alternative Wage Surveys may be accepted by the DOL if the survey meets specific requirements.  Employers concerned about the Final Rule and its implications for their employees may want to consider using an Alternative Wage Survey in place of the DOL’s wage survey.  For more information about which wage surveys may be accepted by the DOL, please contact your MU attorney. 

Monday, January 18, 2021

A LOOK BACK, AND A LOOK AHEAD

Join is for a review of some of the immigration changes that took place in 2020 and a look forward to the changes coming in 2021, specifically for the H-1B cap. Interested clients and friends can register for our webinar by clicking on the link below.

REGISTER HERE

MU Law will be hosting a free webinar for our clients and friends on Tuesday, January 26, 2021 at 2PM Eastern (1PM Central).

Join us for this FREE webinar to learn more about:

  • H-1B Cap Basics, Registration Process, and Projections
  • NEW RULE: H-1B lottery system, selection by wage
  • NEW RULE: DOL Rule Regarding Calculation of Prevailing Wage
  • H-1B Specialty Occupation
  • H-1B Dependency
  • H-1B issues for Staffing Companies and Third-Party Placement
  • Third- Party Placement v. In-House work?
  • Employer-Employee Relationships
  • Cap-Gap for F-1s
  • CPT / OPT Maintenance
  • Top 10 things H-1B employers can do to stay compliant

PLEASE JOIN US!

Monday, January 11, 2021

USCIS TO REPLACE H-1B LOTTERY: ONLY H-1s WITH THE GREATEST WAGES WILL BE SELECTED

USCIS has issued a final rule that will replace the H-1B cap lottery with a wage-based selection process.  The new process selects the highest OES prevailing wage level, starting with Level IV.  If there are more than 85,000 petitions filed with a Level IV wage, then the USCIS will hold a lottery just for the Level IV petitions.  If there are fewer than 85,000 that are filed with a Level IV wage, then the USCIS will take all petitions that are filed with Level III wage.  The process then continues for Level II and I, until the full allotment of 85,000 have been selected.  USCIS reserves 20,000 of the 85,000 H-1B slots for master degreed holders from US universities. 

The rule will take effect in 60 days, in time for the March 2021 H-1B cap season.  The incoming Biden could theoretically place the regulation on hold. The rule could also be challenged in court.   

Because we will not know in advance how many will be petitioned under Level IV, III, II, or I, it is impossible to know what wage level will guarantee a chance at an H-1B slot, although a petition filed with a Level IV wage should have a good chance of success. 

Another complicating factor is that it is very difficult to assess how COVID and/or the economy will affect the volume of H-1B cap petitions that will be filed this year.  The USCIS received over 250,000 H-1B cap petitions in both 2019 and 2020.