Coronavirus, Immigration DOL and DHS issue rules tightening requirements for H-1B and Permanent Labor Certification programs

October 12, 2020
By ISSS

On October 8, 2020, the US Department of Labor (DOL) published a rule amending how prevailing wage rates are calculated for H-1B and Permanent Labor Certification (PERM) programs. A prevailing wage rate is the average wage paid to similarly employed workers in a specific occupation in the area of intended employment, and the DOL requires that foreign workers be paid at least this amount. The rule, which became effective on the date of publication, results in higher prevailing wage levels for all occupations and was proposed as a measure to “more effectively ensure that the employment of immigrant and nonimmigrant workers [ . . . ] does not adversely affect the wages and job opportunities of U.S. workers.” See the NAFSA website for a full summary of the rule and to view the new prevailing wage rates.

Additionally, on October 6, 2020, the Department of Homeland Security announced a rule that will narrow the definition of “specialty occupation” for H-1B employees, clarify how US Citizenship and Immigration Services (USCIS) determines the “employer-employee relationship,” and revise the definition of “United States employer,” among several other changes. This rule becomes effective on December 7, 2020. Please see here for a summary of the changes proposed by the rule.

ISSS stands in solidarity with Penn’s international scholar and employee community, many of whom have been directly involved in the nation’s fight against the COVID-19 pandemic, and we remain dedicated to ensuring that they are able to pursue their academic and career goals in the United States.

Please reach out to your assigned advisor or contact ISSS with any concerns about how the new regulations may affect you or your department.

Frequently Asked Questions

Do the new DOL prevailing wage regulations apply to prevailing wage determinations issued before October 8, 2020 [the effective date of the new DOL rule]?
No. Per the rule, “[t]he Department will not apply the new regulations to any previously-approved prevailing wage determinations, permanent labor certification applications, or LCAs, either through reopening or through issuing supplemental prevailing wage determinations or through notices of suspension, invalidation, or revocation.”
 

Can the new rules be challenged? What steps is ISSS taking in response to these rules?
The DOL rule became effective on October 8; however, the Department is accepting comments from affected parties, and the rule may be subject to federal lawsuits which may prevent or delay its enforcement. DHS is accepting comments on its rule for a period of 60 days. ISSS is collaborating with Penn’s Office of Government and Community Affairs and partners across campus to produce written comments in response to these rules.
 

What impact do the new rules have on employment authorization for students (e.g., OPT, STEM OPT, CPT)?
Neither of the rules published by the DOL or the DHS address work authorization for international students.