DHS & DOL Interim Filing Rules: Here’s the Beef!

Dear All:

In 1984, fast food chain Wendy’s ran an ad wherein octogenarian actress Clara Peller asked the question, “Where’s the Beef?” A year or so later Wendy’s ran another ad that featured the phrase, “Here’s the beef!” Ever since, the phrase has come to be equated with asking for where is the substance …

On Tuesday, the Department of Homeland Security (DHS) published its Interim Filing Rule for H-1B Nonimmigrant Visa Classification and the Department of Labor and Department of Labor (DOL) published its IFR entitled Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States. Even before the conference calls to announce the releases I had a premonition that no matter what the substance was, they would be attacked by bad actors such as the corporate media, immigration attorneys and other nefarious types.

The bad actors did not disappoint. From my perspective, the spectrum of reporting on the IFRs went from simply bad to worse. Happily, implied in several responses from the immigration attorney community was that H-1Bs were cheap labor. What did disappoint was the cynicism I saw and heard from a number of those who have either been directly impacted by the abusive H-1B system or those who are fighting for reform.

For those asking, “Where’s the beef?” here’s the answer …

A Reason to Celebrate

In my mind, the great thing about the DOL and DHS IFRs are that something happened that was not only positive but constructive and done in the best interest of the American worker. For this, we owe the Trump administration a great big THANK YOU!

Combined with the actions the administration took to save the jobs of Tennessee Valley Authority workers and the executive order on Aligning Federal Contracting and Hiring Practices with the Interests of American Workers, these actions represent the first time in decades we gained some ground in the movement. A strong case was made against the harm being caused by the H-1B visa program.

Enforcement

In a conference call on Tuesday, I was delighted to hear Ken Cuccinelli, the Senior Official Performing the Duties of the Deputy Secretary for the Department of Homeland Security, commit to ensuring compliance, “before, during and after.” This is important because prior administrations had authority to act, but chose not to. What I heard then and saw in the text of the IFRs informs me that DHS plans to bolster enforcement by taking better advantage of the (limited) authority they have. Secretary of Labor Eugene Scalia also promised to cooperate with DHS.

This is important because USCIS may be charged with inspecting LCAs and petitions for obvious errors and inaccuracies, but it is the Secretary of Labor who has the authority to investigate. Sec. Scalia has stated that he will use that authority. I am confident that going forward labor condition applications (LCAs) will be examined against the actual petitioner and the worker.

This kind of authority has never been brought to bear in the H-1B visa arena. For instance, the bonafides of an employer/employee relationship can now be scrutinized and, if found wanting, thoroughly investigated.

Prevailing Wage

The prevailing wage levels were set so H-1B visa workers are now being paid an appropriate wage. This is good news for U.S. workers, as the risk of them being replaced by cheap labor from abroad is greatly minimized. On the other hand, this is bad news for the “body shops” as it sucks much of the profit out of their labor arbitrage model.

LCA Prevailing Wage Rates Set by Dept. of Labor

Level Prior
% of Prevailing Wage
Under IFR
% of Prevailing Wage
Level 1 17% 45%
Level 2 34% 62%
Level 3 50% 75%
Level 4 61% 95%

 

These new prevailing wage levels are much more realistic in that they more accurately reflect wages currently being commanded in the U.S. labor market.

I mentioned above how the new prevailing wage rates will hurt the profitability of body shops. The DHS IFR states, “While maximum validity period for a specialty occupation worker is currently 3 years, this interim final rule will limit the maximum validity period to 1 year for workers placed at third party worksites.” Well, the one-year allowance should pretty much decimate the practice/industry.

Specialty Occupations

Specialty occupations are much better defined. Going forward, the definition of a “specialty occupation” will better conform to the statutory definition as defined by Congress. No longer will jobs such as Quality Assurance, Computer Programmer, Business Analyst, Database Administrator, Pizza Deliveryman, Golf Course Grounds Keeper and Elementary School Teacher be considered “specialty occupations.”

The Future

Nothing I have seen in the DHS or DOL IFRs could be considered to be “pushing” the proverbial envelope. Rather, these two agencies are simply following the law and overturning decades of malfeasance. Hence, I believe they will ultimately withstand the legal attacks from industry and ethnic lobbies that will most assuredly come. In fact, the bottom-feeding, slimy immigration attorney Greg Siskind tweeted out yesterday, “I’m part of a pro bono litigation effort planning to quickly file a lawsuit challenging the onerous DOL wage rule impacting H-1Bs and PERMS.”

We anticipate other lawsuits to be filed by attorneys representing the interests of the H-1B workers to try and push back against these new regulation changes. We also are preparing to fight once these lawsuits are filed, but we need your help in order to do so.

We need affidavits on behalf of U.S. tech workers who have in some form been negatively impacted by H-1B workers. A short 200-word statement would suffice. Please include your full legal name and address (we will protect your privacy), along with your statement. Please email your affidavits to with the subject line “Affidavit Lawsuit.”

Outside of court challenges, I am sure end runs will be attempted as loopholes are discovered. But all and all, this was some damn fine work by DHS and DOL.

In closing, if you read through these documents it will become evident that many thanks are in order for Prof. Ron Hira of Howard University and attorney John Miano. Both were cited in the IFRs, and both have been engaged in the almost Sisyphean task of keeping the federal government and Congress engaged on the topic of nonimmigrant employment visa abuse. They are, in a word, patriots.

With Solidarność.