Interim Final Regulations (IFRs) on Wage Hikes by DOL and on H-1Bs by DHS and Some of the Flaws of Their Logic

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In the last desperate days of the Trump presidency, it becomes increasingly clear that this administration sees the handwriting on the wall and is speeding up its actions to indelibly stamp the nation with Supreme Court confirmation hearings and regulations thrusting the nation further backwards on immigration, race relations, the environment, women’s rights, gay rights, foreign relations, and America’s role on the world stage. It hopes that, with the assistance of the Supreme Court, it will keep the Trump agenda largely intact even if Democrats sweep both houses of Congress and the presidency.

To reward Senate Republicans for their complicity during four years of a misguided and corrupt presidency would not be in the best interests of the country, and voters should vote a straight Democratic ticket across the nation.

The recent use of interim final regulations (IFRs) in the field of immigration instead of the regular process of beginning with a proposed regulation, going through a period of comment, review by the Office of Management and Budget (OMB) and final regulation with another small period of time before implementation, illustrates that this administration intends to continue piling on regulations until the day that Joe Biden takes office on January 20, 2021. The Bidens might have to call on the DC police and National Guard to evict the Trumps.

The Department of Labor (DOL) IFR, “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States,” was published in the Federal Register on October 8, 2020, with an immediate implementation date. Its simple proposition is that wages on the OES system go up blindingly – that in calculating wages, DOL looked at all the wages in a certain occupation in the area of employment and recalculated OES level wages to a higher percentile of where all the wages fall. Level I went from what the 17th percentile is earning to what the 45th percentile is earning; Level II from the 34th percentile to the 62nd percentile; Level III from the 50th percentile to the 78th percentile; and Level IV from the 67th percentile to the 95th percentile. The orchestration of various premises to bring this about was fairly devious and moved in five said and unsaid steps: 1.) Mythologization of H-1B specialty occupation jobs almost to the point of being rare birds requiring more than a regular bachelor’s degree –a specialized bachelor’s degree. 2.) That without higher qualifications than a regular (as opposed to specialty) bachelor’s degree, an alien cannot obtain the visa. 3.) That the current wage system is not accurate since it takes into account wages paid to workers who almost certainly would not qualify to work in a specialty occupation. 4.) That an alien qualifying for an H-1B visa should be paid at the same level as a US worker with the same qualifications, and since most H-1B entry level individuals have a Master’s degree, they should be paid at the same rate as US workers with similar degree and experience. 5.) Entry-level H-1Bs should be paid the same rate as similarly qualified US workers regardless of the actual job that they are performing. This ignores a number of factors such as 1.) The H-1B registration process is skewed to accepting more US Masters and higher degreed individuals than those with bachelor’s degrees. The Trump administration expressed pleasure at changing the formula of H-1B selection, so it seems fairly incongruous to somehow try to imply that aliens and their employers are gaming the system in having Masters level individuals fill entry-level positions or that their possessing a Masters degree suggests that the position is anything other than entry-level. 2.) USCIS ignores its own regulatory list of H-1B amenable fields when it sides even further with DOL that many occupations in these fields can be adequately filled without a directly related specialized bachelor’s degree or its equivalent. 3.) To say that an H-1B candidate with a Master’s degree in an entry position should be paid as much as a US worker with a Master’s degree in a much more complex position defies logic. Extending that proposition to its logical conclusion, an alien just graduated with a PhD in chemical engineering with past experience in the home country who manages to grab a job as a junior chemical engineer would be paid at the same rate as a non-alien senior chemical engineer with a similar PhD. Such thinking is violative in spirit of §212(n)(1)(A) of the INA that employers pay H-1B workers the greater of the actual wage level paid by the employer to all other individuals with similar employment in question or the prevailing wage level for the occupational classification in the area of employment. The statute envisions a connection between the payment for “similar employment” and the occupational classification prevailing wage – not the DOL ignoring the specific job that is offered.

The Department of Homeland Security (DHS) IFR, “Strengthening the H-1B Nonimmigrant Visa Classification Program,” was published in the Federal Register on the same day, but with an implementation date of December 7, 2020. As with the DOL rule, this regulation was rushed through the screening process and review waived by the OMB to ensure that it would appear before the election. The IFR redefines specialty occupation in a way in which very few individuals will be able to qualify by changing the degree requirement for the specialty position from being one that is “normal”, “common”, or “usual” to the occupation to one that is in a “directly related specific specialty” or its equivalent. According to the Occupational Outlook Handbook (OOH), the seeming “bible” of USCIS, however, very few professional occupations can be done by just holders of one specific degree. USCIS lists a number of fields amenable to H-1B occupations at 8 C.F.R. § 214.2(h)( 4)(ii) as:

Specialty occupation means an occupation which [(1)] requires theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts, and which [(2)] requires the attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States.

Yet for examples, the OOH holds forth that biomedical engineers can qualify to become biomedical engineers through a related engineering field & electrical or electronics engineers through a related engineering field (engineering); chemistry or materials scientists through a bachelor’s degree in chemistry or a related field (physical sciences); market research analysts through a bachelor’s degree in market research or a related field (social sciences); medical or health services manager through a bachelor’s degree in health administration, health management, nursing, public health administration or business administration (medicine & health); high school teacher through a bachelor’s degree with many states requiring them to have majored in a subject area (education); fashion designer through a bachelor’s degree in a related field such as fashion design or fashion merchandising (arts).

The IFR quotes INA §214(i)(1)’s second requirement of specialty occupation being attainment of a bachelor’s or higher degree in the specific specialty or its equivalent and then describes very restricted circumstances under which any equivalency would be found such as electrical engineering and electronics engineering study for the position of an electrical engineer. However, this is a mean-spirited interpretation of “equivalent” in today’s world of education in which cross subject majors are taught all the time. Use of the words “normal”, “usual”, and “common” more accurately describe the equivalent education that should be looked at to qualify for a specialty occupation.

The rate of denial for new H-1Bs is currently 29% through the second quarter of FY 2020 and only anticipated to increase tremendously under the IFR.

It is expected that multiple lawsuits will be filed against the two IFRs, and there is a report that multiple technology companies have already filed suit on October 16, 2020, against the Department of Labor in a New Jersey federal court. Both rules are expected be challenged as not having gone through adequate review, especially the effect upon impacted parties, and one of the arguments certain to be used against the DHS rule is its improper chain of succession invalidating any actions by the current DHS Secretary, Chad Wolf.

The DHS rule is not retroactive and will only be applied to petitions filed on or after the effective date of the regulation, including amended petitions or petition extensions. It is not to be applied to pending petitions nor to previously approved petitions either through reopening or a notice of intent to revoke.

Of some comfort is the thought that a Joe Biden presidency will be more reasonable to the immigration needs of US businesses, but it is a long time to January 20, 2021, and to however long it will take him and his administration to get around to H-1B questions. Without the Senate, the Democrats will have a difficult time trying to reverse four years of Trump actions in immigration and other areas. Joe Biden will have a lot on his plate immigration-wise as a July 2020 Migration Policy Institute report catalogued 400+ executive actions taken in 3 ½ years by the Trump administration in the field of immigration.


About The Author

Alan Lee, Esq. Alan Lee, Esq. is an exclusive practitioner of immigration law based in New York City with an AV preeminent rating in the Martindale-Hubbell Law Directory for 20+ years, registered in the Bar Register of Preeminent Lawyers, on the New York Super Lawyers list (2011-12, 2013-14, 2014-2015, 2015-2019, 2020), and recognized as a New York Area Top Rated Lawyer. He has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Epoch Times, Pakistan Calling, Muhasba and OCS; testified as an expert on immigration in civil court proceedings; and is a regular contributor to Martindale-Hubbell’s Ask-a-Lawyer program. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004; his 2004 case in the Second Circuit Court of Appeals, Firstland International v. INS, successfully challenged Legacy INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof, although its central holding that the government had to notify approved immigrant petition holders of the revocation prior to the their departure to the U. S. for the petition to be able to be revoked was short-lived as it was specifically targeted in the Intelligence Reform Act of 2004 (which in response changed the language of the revocation statute itself). Yet Firstland lives on as precedent that the government must comply with nondiscretionary duties established in law, and such failure is reviewable in federal courts. His 2015 case, Matter of Leacheng International, Inc., with the Administrative Appeals Office of USCIS (AAO) set nation-wide standards on the definition of “doing business” for multinational executives and managers to gain immigration benefits.


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