H-1B, employment immigration processes under attack

In a continuing effort to curtail legal immigration, the Trump administration recently announced two rule changes radically limiting H-1Bs and the most common employment-based permanent residence process. The first rule change came from the U.S. Department of Labor (DOL) affecting prevailing wages that are used for both H-1B labor condition applications (LCAs) and the program electronic review management (PERM) labor certification process. The rule was effective immediately on October 8, 2020. The second change came from the U.S. Citizenship and Immigration Services (USCIS) narrowing H-1B eligibility, particularly for companies that place workers at third-party worksites.

Wage rule

The DOL determines the “prevailing wage” to be used in the H-1B and PERM process. The concept is to make sure the wages offered to immigrant workers don’t undercut the U.S. job market. Prevailing wages are determined by employer wage surveys and reported by geographic area and occupation. They are determined in four levels, indicating the education and experience required to do the job offered.

While continuing the general methodology, the DOL increased the “percentiles” of the data to be used for the four levels. For example, level 1 (entry level) stood at the 17th percentile before the rule. Now it is the 45th percentile.