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IMMIGRATION JANUARY 15, 2021 | The Indian Eye 46

trump’s final attacks on H-1B visas and legal

immigration: reintroduction of the Wage rule and rule

requiring client companies to file H-1B Petitions

lthough President el I wage, currently set at www.forbes.com/sites/stu- Client “secondary employers” to
Trump is on his around the 17th percen- artanderson/2021/01/13/ On Friday, January 15, file the LCA and H-1B pe-
Away out, his ad- tile, eventually increasing dol-h-1b-visa-wage-rule- the Department of Home- tition. This departure com-
ministration has promul- to approximately the 35th donald-trumps-bad-part- land Security (DHS) quiet- pletely contradicts USCIS’
gated two new rules that percentile. However, the ing-gift-to-immigrants/ for ly issued a new rule aimed concerns about whether
will have a devastating new rule acknowledges a detailed summary of the at demolishing the H-1B the petitioner of an H-1B
impact on the H-1B visa that an abrupt transition phase-in. visa program. The Depart- worker is a genuine em-
program and legal immi- to the new wage levels This rule was initially ment of Labor (DOL) also ployer or not by now ren-
gration. could be disruptive to the published with an effective issued accompanying new dering even the user of the
economy and detrimental date of October 8, 2020, guidance entitled “H-1B H-1B worker’s services an
reissUance of doL to U.S. employers, so the but was struck down in the Program Bulletin Clarify- employer.
Wage rULe DOL will gradually intro- U.S. District Court for the ing Filing Requirements This outcome was

n January 12, 2021 duce the new wages over a District of Columbia last for Labor Condition Ap- never contemplated in
the Department period of a year and a half, month on the ground that plications by Secondary the initial proposed H-1B
Oof Labor (DOL) with the first increase set to the COVID-19 pandemic Employers at 20 C.F.R. §§ rule which was blocked in
published an advance take place on July 1, 2021. did not give the DOL suf- 655.715 and 655.730(a)”. court, and stake holders
copy of a final rule which For H-1B workers who ficient cause to publish the The DHS rule is a limit- were not given an oppor-
changes the way in which were the beneficiaries of rule without a notice and ed version of a proposed tunity to comment on this
prevailing wage levels will approved I-140 petitions comment period. Purdue rule published in Octo- aspect of the rule, which
be computed for purpos- as of October 8, 2021, the University, et al., v. Scalia, ber, the implementation will create a radical para-
es of permanent labor phase-in period for the in- et al., Civ. Actin No. 20- of which was enjoined, digm shift. “Secondary em-
certifications and Labor creased wages is extended 3006 (2020). and will take effect 180 ployers” will have difficulty
Condition Applications over a three- and- a -half Though the new wages days after publication even complying with the

(LCAs). The final rule is year period. See Stuart themselves will be grad- in the Federal Register. rule since they do not pay
expected to be published Anderson, DOL H-1B ually phased in, the new The DHS rule changes the H-1B worker’s wages.
on January 14, 2021. The Visa Wage Rule: Donald rule will go into effect 60 and broadens the defini- The concept of secondary
new rule will raise all four Trump’s Bad Parting Gift days after publication, tion of the employer-em- employment has existed
salary tiers, with the Lev- To Immigrants, Forbes absent intervention from ployee relationship by in- in DOL regulations with
(Jan. 13, 2021), https:// the Biden administration. corporating common law respect to dependent em-
Despite the phase in, the elements into the defini- ployers and willful viola-
new wage levels will have tion of an employer. His- tors who needed to ascer-
no bearing to wages paid torically, USCIS has been tain whether the assigning
to US workers. They will concerned with whether a of an H-1B worker with a
not reflect prevailing or petitioner who file an H-1B secondary employer would
market wages and will petition and then sends the displace US workers. In
be set at artificially high beneficiary to a third-party 2000, the Fifth Circuit in
levels, thus rendering it worksite is the true em- Defensor v. Meissner also
difficult for an employer ployer of that beneficiary. viewed a hospital that used
to either sponsor a new The DHS rule, after tak- the nurses of a staffing
H-1B worker or retain ing into account comments company as a secondary
an existing H-1B work- made in response to the employer, but the Court
er at the time of renewal. prior H-1B proposed rule, developed this analytical

The American Immigra- has now broadened the framework of two employ-
tion Lawyers’ Association definition of the employ- ers to determine whether
(AILA) has reported that er-employee relationship. the hospital, as a second-
President-Elect Biden’s However, the USCIS, ary employer, required the
transition team will issue by broadening the em- nurses to have a bachelor’s
m of a memorandum on Janu- ployer-employee defini- degree or whether it was
CYRUS D. MEHTA & PARTNERS PLLC ary 20, 2020 that will delay tion, is now requiring the only the staffing compa-
for 60 days the implemen- entities who use the ser- ny’s requirement. Defen-

tation of this and other vices of the H-1B worker sor v. Meissner, 201 F. 3d
last-minute regulations to also file H-1B petitions 384 (5th Cir. 2000). How-

 
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­ promulgated in the last if they meet the broader ever, those applications
days of the Trump presi- definition of employer. of “secondary employer”
€
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dency. The DOL’s corresponding were limited to the depen-
Requirement to File guidance announced that dent employer’s obligation
H-1B Petitions by Em- it is reinterpreting its regu- to ensure there was no dis-
2 6th Floor

    ployer and Third Party lation to also require such placement of US workers

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