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The U.S. Department of Labor (DOL) published an Interim Final Rule (IFR) that will become effective immediately. The new rule will apply to Permanent Employment Certification, H-1B, H-1B1, and E-3 Visa programs. DOL explains that the rule is necessary to curb actual and potential abuses of the visa programs and cites the COVID-19 public health emergency as a rationale for implementing this rule without public comment first. There is a 30-day window to comment post publication.

DOL has amended the existing wage methodology and has increased the wage levels for beneficiaries at all Occupational Employment Statistics (OES) levels – Levels 1 through 4. The current wage percentiles are set as follows:

OES Wage Level 1 – 17th Percentile

OES Wage Level 2 – 34th Percentile

OES Wage Level 3 – 50th Percentile

OES Wage Level 4 – 67th Percentile

The new percentiles are as follows:

OES Wage Level 1 – 45th Percentile

OES Wage Level 2 – 62nd Percentile

OES Wage Level 3 – 78th Percentile

OES Wage Level 4 – 95th Percentile

This may have a dramatic impact on wage determinations.

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Photo of Laura Foote Reiff‡ Laura Foote Reiff‡

Laura Foote Reiff Co-Chairs the Business Immigration & Compliance Practice and is the Co-Managing Shareholder of the Northern Virginia Office. She also Co-Chairs the firm’s Labor & Employment Practice’s International Employment, Immigration & Workforce Strategies group. Laura focuses her practice on business immigration

Laura Foote Reiff Co-Chairs the Business Immigration & Compliance Practice and is the Co-Managing Shareholder of the Northern Virginia Office. She also Co-Chairs the firm’s Labor & Employment Practice’s International Employment, Immigration & Workforce Strategies group. Laura focuses her practice on business immigration laws and regulations affecting U.S. and foreign companies, as well as related employment compliance and legislative issues.

Laura advises corporations on a variety of compliance-related issues, particularly related to Form I-9 eligibility employment verification matters. Laura has been involved in audits and internal investigations and has successfully minimized monetary exposure as well as civil and criminal liabilities on behalf of her clients. She develops immigration compliance strategies and programs for both small and large companies. Laura performs I-9, H-1B and H-2B compliance inspections during routine internal reviews, while performing due diligence (in the context of a merger, acquisition or sale) or while defending a company against a government investigation.

Laura represents many businesses in creating, managing and using “Regional Centers” that can create indirect jobs toward the 10 new U.S. jobs whose creation can give rise to EB-5 permanent residence for investment. She coordinates this work with attorneys practicing in securities law compliance, with economists identifying “targeted employment areas” and projecting indirect job creation, and with licensed securities brokers coordinating offerings. She also represents individual investors in obtaining conditional permanent residence and in removing conditions from permanent residence.

Laura’s practice also consists of managing business immigration matters and providing immigration counsel to address the visa and work authorization needs of U.S. and global personnel including professionals, managers and executives, treaty investors/ traders, essential workers, persons of extraordinary ability, corporate trainees, and students. She is an immigration policy advocacy expert and works on immigration reform policies.

Admitted in the District of Columbia and Maryland. Not admitted in Virginia. Practice limited to federal immigration practice.