DOL’s interim final rule, currently in effect, includes a significant hike to all prevailing wages and a default prevailing wage determination of $208,000/yr for multiple occupations.  Several business groups, universities, and technology firms quickly filed suits to stop this arbitrary and wild rule. 

After DOL released a new interim final rule dramatically increasing DOL’s prevailing wages used for H-1B, H-1B1 and E-3 visas and PERM Labor Certifications to numerous occupations, many organizations filed lawsuits challenging both the prevailing wage determination process and the rates itself. 

The wages, primarily the new Level I and Level IV, are intended to make it almost impossible for employers to sponsor foreign workers.   In some cases, this default wage represents an increase of 50% from the previous Level I wage. 

Amazingly, the rule requires employers to pay a default rate of $100/hr ($208,000/yr) for more than 10,000 common high-skilled occupations (including Software Developers). Why? Because DOL could not provide prevailing wage data for these occupations under the new system “due to limits in OES data.” 

The plaintiffs argue that DOL’s new rule significantly and unfairly changes how the agency computes the prevailing wage applicable to certain permanent and temporary immigration classifications and prevailing wage determinations. 

New Proposed H-1B Rule Also Being Litigated 

DHS also issued a new rule that quickly found itself the center of a lawsuit. The rule amends key H-1B definitions and standards, limiting the definition and jobs that can qualify as “specialty occupations.” 

Currently, to qualify for H-1B status, a position must require at a minimum a four-year bachelor’s degree in a specific specialty and show that the degree requirement is “normal,” “common,” or “usual” to the occupation. The new rule adds the onerous requirement of showing that the degree is “always” a requirement for the occupation.

The proposed rule also requires an employer to show an even more direct relationship between the required degree field for the job and the job duties to meet the specialty occupation requirement.  For example, if the employer will accept a degree in more than one field (e.g., construction engineering or civil engineering), the employer must show that each acceptable degree field is directly related to the job offered. 

The DHS rule is set to become effective on December 7, 2020. 

Foreign workers play a vital role in diversifying, enhancing and supporting our economy. These unreasonable rules are continuing to disrupt our economic recovery. Employers and foreign nationals applying for H-1B visas (new and extensions) and green card processes will continue to face a challenging road ahead. 

That’s why we’re following the court process and continuing to strategize with our clients to optimize their options. We hope that an injunction will be issued soon.