Changes to the Business Immigration Landscape

In November, USCIS and the Labor Department tried to change prevailing wage rules applied to the PERM and H-1B, H-1B1, and E-3 visa programs. But on December 1, 2020, the U.S. District Court for the Northern District of California set aside the agencies’ interim final rule because it did not follow the proper rulemaking steps under the Administrative Procedure Act (APA). As a result, beginning on December 4, the DOL updated its wage source data to reflect the prevailing wage data for each occupation and area of intended employment that was in effect prior to October 8. For prevailing wage determinations issued using the wage source in effect from October 8 to December 4, 2020, petitioners can submit the PWDs for review on or before January 4, 2021.

Because there is a chance that the prevailing wages could be increased again, petitioners may want to file an LCA immediately for H-1Bs expiring in 2021, even if this means that the beneficiaries will lose some time on their H-1B petitions. Similarly, for H-1B petitions expiring in 2022, petitioners can file the LCA now and lock in the wage. The LCA will be valid for three years from the date of filing. An important reminder to petitioners is that the LCA must be issued before filing of the H-1B petition. Therefore, if a petitioner filed an H-1B petition with an LCA using the higher wages, the petitioner will need to file an entirely new petition in order to benefit from the reversion of the prior wages.

We are monitoring the developments regarding the prevailing wage situation and will provide updates on this matter as they become available.