Employers of Skilled, Professional and Intracompany Transfers Beware: Administration's Regulatory Creep Threatens Non-Immigrant Visa Programs
H-1B, L-1, H-2B, H-2A and J-1 Visas May Be Rendered Unworkable
There is a philosophical move fueled by union sympathizers and apparently imbedded in the leadership of this administration to re-engineer the temporary non-immigrant visa programs in such a way as to render them unworkable and unusable.
This process is most visible in the H-2A Agricultural Worker program and the H-2B seasonal non-agricultural worker program. However, the same proposals identified in the proposed and final rules in these two programs are also aimed at the H-1B specialty occupation program, the J-1 Exchange Visitor program, the L-1A and L-1B intracompany transfer visa program. All employers concerned with staffing and foreign skilled talent should be vigilant in challenging attempts to change these programs.
The key unworkable proposals made by the administration include:
1. The DOL is now seeking to apply a labor certification process to all visa categories. Some of the revisions to processes already in place include:
- abolishment of the attestation methods and reverting to the old, time-consuming directed recruitment methods, including recruitment up to 3 days before the date of need
- added administrative procedure of bifurcation of the registration phase that addresses the employer’s temporary need and an application phase that addresses the labor market test;
- a requirement to compensate corresponding employees (U.S. workers) in the same manner as non-immigrant worker workers;
- three-fourths guarantee of payment of wages;
- a requirement to pay additional transportation costs and daily subsistence;
- new definitions for “full-time, seasonal work”; and
- new liability standards.
2. Wage methodology
The DOL is creating a new wage structure, which will have devastating consequences for employers. We should retain the current four tiered wage system recognizing differing skill levels. The Bureau of Labor Statistics Occupational Employment Statistics (OES) wage data is the most appropriate wage data available since it is collected across all industries and all parts of the country. OES wage data is also the most reflective of the actual wages paid by U.S. employers. Calculating wages based on Davis Bacon Act (DBA) and McNamara-O’Hara Service Contract Act (SCA) wages is not appropriate for many industries unless one of the Acts applies to a specific employer/applicant as a government contractor. For those industries that are regulated by these Acts, there are some inherent problems related with those wage calculations that often makes their use inappropriate for calculating wages.
While the OES data is the most appropriate wage data to use, it is also important to recognize that the OES Survey already produces wages that are higher than those paid by employers who do not participate in visa programs.
3. Limitation on non-immigrant visa numbers through a commission rather than economic demand
How to determine how many non-immigrant visa numbers are needed for employers. The administration would like a governmental commission. Currently, caps on visas for H-2Bs and H-1Bs do not work. A market-based regulator based on supply and demand is preferred.
A Federal District Court Judge in the Northern District of Florida issued a nationwide preliminary injunction barring the DOL from implementing the H-2B program rule. Her decision also bodes well for the H-2B wage rule litigation that is pending in the same court. Legal proceedings in this case will continue.