Rule changes impacting H-1B visa program

Oct. 8, 2020

Updated Oct. 21, 2020, 2:15 p.m.

This week, two federal agencies — the Department of Homeland Security and Department of Labor — announced separate interim final rules that impact the H-1B visa program. These rule changes are separate and distinct from the recent proposed rule to replace the duration of status provision for F, J and I nonimmigrant visa classifications.

On Oct. 6, the Department of Homeland Security announced an interim final rule, Strengthening the H-1B Nonimmigrant Visa Classification Program. The principal change that has bearing on MU recruitment and hiring of international candidates is a revised definition for an eligible H-1B specialty occupation position. The rule may require employers to demonstrate that the minimum degree requirement is always the requirement of the occupation as a whole. As an AAU research-intensive university, MU departments routinely recruit the most qualified candidates in highly specialized disciplines from all over the world. These positions most often require the minimum of a doctoral degree. However, government adjudicators’ understanding of the breadth and range of disciplines and appropriate credential across all fields may be limited, resulting in an increase in requests for evidence and potentially causing delays in H-1B petition processing.

Additionally, the Department of Labor issued an interim final rule, Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States. This rule will increase required wages for permanent labor certifications and labor conditions applications, which are required for H-1B, E-3 and H-1B1 workers. The rule will not apply to any previously-approved prevailing wage determinations or permanent labor certification applications. However, new filings on or after Thursday, Oct. 8, 2020, will potentially result in significantly higher prevailing wage determinations. For more in-depth analysis of the rule, please refer to the NAFSA website.

Finally, the government has proposed increasing the processing fees for H-1B petitions, as well as other USCIS processing fees. Though these changes have been published in the Federal Register, a U.S. District Court for the Northern District of California issued a nationwide preliminary injunction and stay on implementation of the 2020 final USCIS fee rule in its entirety. During the injunction, USCIS will accept current editions of forms and current fees, and will use regulations and guidance already in place to adjudicate applications and petitions. As of Oct. 19, one of the proposed processing fee changes is no longer on hold. The premium processing fee for H-1B petitions has increased from $1,440 to $2,500 for all Form I-907s postmarked on or after Oct. 19, 2020.

Our office is reviewing these changes in consultation with campus leadership and the UM System Office of General Counsel. We will continue to update the international scholar community and campus departments as we have more information. If you have questions or concerns, please contact us.