DHS & DOL Changes to the H-1B Nonimmigrant Visa Program
DHS Interim Final Rule Amending the H-1B Nonimmigrant Visa Program
On Oct. 8 the U.S. Department of Homeland Security (DHS) announced an interim final rule (IFR) that amends certain regulations governing the H-1B nonimmigrant visa program, effective Dec. 7, 2020. Individuals may read the IFR in full on the U.S. Federal Register and submit public comment by varying deadlines, the first of which is Nov. 9, 2020.
Historically, the intent of the H-1B nonimmigrant visa program has been to allow U.S. employers to temporarily hire highly skilled and educated foreign workers in positions for which qualified U.S. workers cannot be found. On April 18, 2017, President Trump issued Executive Order E.O. 13788 Buy American and Hire American which called on DHS to propose new rules and guidance, "to protect the interests of U.S. workers in the administration of our immigration system." The Oct. 8 IFR is the response to E.O. 13788 and a stated effort to further the policy objective of E.O. 13927, Accelerating the Nation's Economic Recovery from the COVID-19 Emergency by Expediting Infrastructure Investments and Other Activities. DHS is citing the economic crisis caused by COVID-19 as the basis for issuing an interim final rule, and thereby, forgoing the regular notice and comment period.
The Oct. 8 IFR will amend the H-1B program in many ways, including by narrowing the H-1B regulatory definitions and standards for "specialty occupation," "worksite," "third-party worksite," "United States employer," and "employer-employee relationship." It will also require petitions to provide corroborating evidence of work in a specialty occupation and increase USCIS' H-1B site visit authority. The Office of International Services provides advising and petition support for UIC and UI Health departments that hire faculty, medical professionals and staff under the H-1B program. This IFR will alter the University's ability to recruit, hire and retain the highly skilled foreign professionals that advance our mission.
Individuals, including nonimmigrants currently in the U.S. in H-1B status who will be directly impacted by this final rule, may submit written comments via the Federal eRulemaking Portal or alternative methods outlined in the IFR. Comments must be submitted by varying deadlines, the first of which is Nov. 9, 2020, and include reference to DHS Docket No. USCIS-2020-0018. Additionally, please note that comments become part of the public record, including any personal or biographical information included therein.
DOL Revises Wage Scale Effective Oct. 8
Effective Oct. 8, the U.S. Department of Labor revised the wage scale used when filing for an H-1B nonimmigrant visa, employment based 2 preference (master's degree and higher) green card and employment based 3 (bachelor's degree) green card. When hiring a foreign worker in these categories, the employer must attest that they will pay the worker the higher of the prevailing wage or the actual wage paid to employees with similar experience and qualifications. Under this interim final rule, the required wage level for entry-level workers rises to the 45th percentile of their profession's category (up from the 17th percentile) and the requirement for the highest-skilled workers rises to the 95th percentile (up from the 67th percentile).
The Office of International Services has been following proposed changes to the H-1B program closely and will continue to notify the UIC international community and department administrators with updates as they become available. OIS will soon hold virtual town halls for the UIC international community and administrators to discuss these changes and questions our community may have. Email invitations for the town halls will be sent in the coming days. In the meantime, feel free to send any questions or concerns about this announcement to us at firstname.lastname@example.org or +1 (312) 996-3121.