Biden team withdraws Trump rule regarding H-1B compliance

White House
Photo by Joyce N. Boghosian/White House

Withdrawn rule required both staffing agencies and tech firms to file Labor Condition Applications.

The Biden administration has withdrawn a Trump administration notice regarding compliance with a law requiring US employers to pay H-1B visa foreign workers same or more than Americans in similar jobs by both staffing agencies and their clients.

The US Department of Labor (DoL) withdrew the notice issued just five days before President Donald Trump’s exit, on Jan. 20 inauguration of Biden-Harris administration before its publication in the Federal Register.

The notice also requested public comments on an Office of Foreign Labor Certification (OFLC) H-1B Program Bulletin and a Wage and Hour Division Field Assistance Bulletin (FAB) revising its interpretation of its regulations concerning which employers of H-1B workers must file Labor Condition Applications.

The “requirements of the Bulletin and FAB are no longer in effect,” the DoL says on its website adding, it “will notify the public of any further actions as appropriate once it completes its review.”

On January 15 DoL had announced a “new interpretation of their regulations and accompanying guidance in ongoing efforts to protect American jobs and ensure employers pay temporary foreign workers admitted under the H-1B visa program as the law requires.”

The new interpretation of DoL regulations required “all common-law employers of H-1B workers, including any secondary employers who meet the common-law test, to file an LCA.”

The Jan. 15 guidance noted H-1B employment frequently involves primary employers, such as staffing agencies, that petition to hire H-1B workers, as well as secondary employers, such as staffing agencies’ clients, where the H-1B workers are assigned to work.

Under the interpretation announced on Jan 15 both a staffing agency as also technology firms employing H-1B workers were required to file LCAs and petitions concurrently.

The intent of the H-1B provisions is to help employers who cannot otherwise obtain needed business skills and abilities from the US workforce by authorizing the temporary employment of qualified individuals who are not otherwise authorized to work in the United States, the DoL said.

The law establishes certain standards in order to protect similarly employed US workers from being adversely affected by the employment of the nonimmigrant workers, as well as to protect the H-1B nonimmigrant workers.

“Employers must attest to the Department of Labor that they will pay wages to the H-1B nonimmigrant workers that are at least equal to the actual wage paid by the employer to other workers with similar experience and qualifications for the job in question, or the prevailing wage for the occupation in the area of intended employment – whichever is greater,” it said.

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