New DOL Rule Makes Significant Increase to PERM and H-1B Wage Minimums

Both the Department of Homeland Security (DHS) and the Department of Labor (DOL) released new rules last week, raising prevailing wages for high-skilled foreign workers and revising the definition of a “specialty occupation” for H-1B purposes. Both of the new regulations adversely affect U.S. employers and potentially reduce opportunities for the high-skilled talent they need.

The DOL rule became effective immediately. Under the rule, the new wages will dramatically impact the H-1B and permanent labor certification (PERM) programs, increasing prevailing wage levels 1 to 4 by up to 26% of surveyed wages for H-1B and E-3 visas, as well as for I-140s. All wage determinations made by the DOL starting October 8, 2020, now fall under this new regulatory framework.

The DHS regulations are scheduled to have a 60 day delayed effective date. DHS stated that the regulation revises the regulatory definition for a “specialty occupation” for H-1B purposes, which is the most common way professional workers obtain work authorization in the U.S. The rule will:

  • Narrow the definition of “specialty occupation”, including requiring a direct relationship between the required degree field(s) and the duties of the position. The petitioner must demonstrate a direct relationship between the required degree in a specific specialty and the duties of the position.
  • Require companies to make “real” offers to “real employees” by closing loopholes and preventing the displacement of the American worker; and,
  • Enhance DHS’s ability to enforce compliance through worksite inspections and monitor compliance before, during, and after H1-B approval.

While both rules are likely to be subject to be challenged, they may impact your foreign employees. For further questions on how these new regulations may impact your workforce, please reach out to Liz Dinnen, Manager, Immigration Services, at edinnen@employerscouncil.org.