We discussed and guessed on how Trump may stick it to immigrants in his last days last week. This week we have more clarity.
The H-1B Registration Prioritization rule is at the public inspection desk. This is the final rule that was thrown out in a number court cases as recently as November 3rd. This rule changes the first to file rule for the H-1B lottery to prioritize higher salaries and higher skill H-1B visas first.
The rule will go into effect 60 days after it is published in the Federal Register, which means it will go into effect March 9, 2021, unless President Biden or a Court takes action to delay it, withdraw it or overturn it. Withdrawal of a Final Rule would require drafting a new regulation and going through the notice comment process.
The DOL Prevailing Wage rule was sent to The Office of Information and Regulatory Affairs “OIRA” Friday. The agency expects that rule to be published in the Federal Register mid-week January 11-15. The Labor Department is incorporating a 2 year phase in for the wage changes into its proposal.
Furthermore, I was told that the actual changes to the wage data in the OES system won’t begin to take effect until July of this year. The prevailing wage levels will be approximately (give or take a percentile): OES Wage 1 – 35th Percentile; OES Wage Level 2 – 53rd Percentile; OES Wage Level 3 – 72nd Percentile, and; OES Wage Level 4 – 90th Percentile.
This is a reduction from the interim rule prevailing wages which were:
- Level I Wage: 45th percentile (from 17th percentile)
- Level II Wage: 62nd percentile (from 34th percentile)
- Level III Wage: 78th percentile (from 50th percentile)
- Level IV Wage: 95th percentile (from 67th percentile)
It is still double what the OES says is the accurate prevailing wages, so it is artificial and will cause a deterrence to hiring. With unemployment at only 3% in the Tech Industry it doesn’t protect American jobs it only makes US Companies pay double what they had to pay workers they need. This will have a chilling effect on keeping jobs in America.
This rule can be withdrawn by Biden, but he may be less likely to do it as Unions will support it. However, Tech and Higher Ed. Will not.
DHS has not yet filed its strengthening the H-1B rule, but we understand the administration is working around the clock to finalize it. This one is likely doomed from the jump as Biden will surely kill it as it will require 30 days before it can be implemented and that is after the inauguration.
There is also an ICE rule to eliminate Duration of Status for F, J, and I nonimmigrants. Like the strengthening of the H-1B rule it is likely to be published as late as the week of the 18th a mere two days or less before the inauguration. It is doubtful Biden will let this go into effect.
Stay tuned to this evolving story.