Intwo sweeping and lengthy regulations the USCIS and DOL have attempted to jamthrough last minute rules that dramatically alter employment-based immigration.  The DOL rule takes effect on Thursday October8. The USCIS rule will take effect in 60 days. Both rules are expected to bechallenged in court.

TheDOL rule dramatically increases prevailing wages for H-1B and EB-2 and EB-3workers.  The rule changes thecomputation of Level I, II, III, and IV. Current Prevailing wages use this formula:

Level           US wage percentile
I                  17
II                 34
III                50
IV                67

Thenew rule changes the formula:

Level           US wage percentile
I                  45
II                 62
III                78
IV                95

Thenew USCIS regulation will be published on October 8 and take effect 60 dayslater. It applies only to petitions filed on or after the effective date.
Therule implements several changes:

  • Itrevises the H-1B definition of “specialty occupation” in a very limitingway.  This new regulation seeks torewrite the approvability of H-1B visas. The USCIS has consistently lost infederal court because it has repeatedly misapplied its own definition ofspecialty occupation.  This regulatorychange seeks to reduce the likelihood of the USCIS losing on this issue infederal court.
  • Thenew rule limits third-party placement H-1B validity to one-year increments.  There does not appear to be any statutoryjustification for this change other than the USCIS’ own belief that third-partyplacements cause more fraud.  As with therewrite of the specialty occupation rule, this regulatory change seeks toreduce the likelihood of the USCIS losing on this issue in federal court.
  • Italso reimposes contract and itinerary requirements in H-1B petitions, which hadbeen ruled illegal by several federal courts. Again, the USCIS seeks to reduce the likelihood of the USCIS losing onthis issue in federal court.

MusilloUnkenholt will shortly have more detail about these two massive new changes.