News

The US Department of Homeland Security (DHS) released a new Final Rule (FR) on Friday afternoon that is to be published shortly. This FR is to take effect 180 days from the date of publication and is entitled “Strengthening the H-1B Nonimmigrant Visa Classification Program.” In essence, it broadens the definition of an “employer-employee relationship” and could require end-users of H-1B professionals also to file H-1B petitions. Likewise, on the same day, the Office of Foreign Labor Certification (OFLC) of the US Department of Labor (DOL) and its enforcement branch the Wage and Hour Division (WHD) issued bulletins requiring the...

The H-1B nonimmigrant visa gives permission to professionals to work for a specific US employer in a specific job. As a minimum requirement, the position offered to the person must require someone to have a degree, and specifically a degree in a particular field. Jobs with duties that can be performed by individuals with a degree in any wide range of fields usually do not qualify for an H-1B. In addition, there must be a US employer and the US employer must offer and pay the individual a “required wage.” This required wage is the higher of the actual wage...

On April 22, 2020, the White House issued an Executive Order that limited entry into the United States of certain individuals seeking to become legal permanent residents (i.e., green card holders). On June 22, 2020, the White House issued an additional executive order banning the issuance of H-1B, H-2B, J, and L nonimmigrant visas (i.e., preventing those individuals outside of the U.S. who do not have such visas to enter the U.S.). Both of these bans were to expire on December 31, 2020. At 5:42PM on December 31, 2020, the White House announced that both of these bans would be...

On December 1, 2020, the U.S. District Court for the Northern District of California set aside the Interim Final Rule (IFR) of the U.S. Department of Labor (DOL) which had redefined the four different prevailing wage levels. In response to this order, the DOL’s Office of Foreign Labor Certification (OFLC) announced last night on its website (dol.gov/agencies/eta/foreign-labor) a time line by which it will be updating the FLAG system to incorporate the pre-IFR wage data. It also set forth details on how to seek a redetermination of any prevailing wage determinations issued in accordance with the IFR wage system.

Of note:

This afternoon, a judge set aside both the Interim Final Rules (“IFR”) issued by the U.S. Department of Homeland Security (“DHS”) and the U.S. Department of Labor (“DOL”). The DHS IFR was to take effect December 6, 2020 and it would redefine the requirements and parameters of the H-1B program. The DOL IFR took effect immediately on October 8, 2020 and redefined the different wage levels used in determining what an employer would be required to pay employees in the H-1B, H-1B1, and E-3 visa programs and in employment-based permanent residency (green card) programs. (See our post of October 7...

US employers seeking to hire non-US workers must ensure that these individuals have the proper employment authorization from the US government. There are a number of “visas” available for such purposes but the H-1B visa is the most popular. The H-1B visa requires an employer to demonstrate that the position offered to the individual is one that requires at least a university degree in a specific field of study (generic liberal arts degrees or even general business degrees do not qualify), that the individual have the degree or its equivalent in work experience, and that the employer is paying the...