DHS Rule Places New Restrictions on H-1Bs

Today, the Department of Homeland Security (DHS) published an interim rule that places additional restrictions on H-1Bs. This rule has been rumored for months and was rushed through the standard rulemaking process, bypassing the traditional notice and comment period. It is scheduled to go into effect in 60 days, however, bypassing standard rulemaking procedures does leave it open to potential legal challenges.

 

This rule, if it goes into effect, will do two primary things:

 

  • Specialty Occupation. It codifies the definition of “specialty occupation” and makes the criteria to meet specialty occupation more stringent. Specifically, the rule says that a bachelor’s degree specific to the H-1B position is required, and that positions allowing for “general degrees,” such as liberal arts or business management, would not be sufficient.
  • Third-Party Worksites. It also establishes new restrictions on employees who work at third-party worksites. This includes specific requirements to demonstrate employer-employee relationships, such as proving that the sponsoring company controls and supervises the work. It also limits the duration of third-party worksite H-1Bs to 1-year increments. It is important to note that employees working from their homes are not considered to be at a third-party worksite.

 

There are other provisions in the regulation, but the two items listed above will have the biggest impact on the H-1B process. It should be noted that this rule is going to face significant legal challenges, not only for bypassing the standard rulemaking procedures, but also for applying a different standard to “specialty occupation” that seems to go beyond what was contemplated in the original H-1B legislation.

 

It is possible to submit comments to the DHS on how this rule will impact employers, but the DHS is not required consider those comments before this rule is implemented. We will post updates on any legal action as they become available.

DOL Raises Prevailing Wages for LCAs and PERM Labor Certifications

Today, the U.S. Department of Labor (DOL) posted an advance copy of a new regulation that will dramatically increase prevailing wage levels. They will continue to use the four-tier leveling system, but the prevailing wages will increase as follows:

 

Level 1 will increase from the 17th percentile to the 45th percentile.

Level 2 will increase from the 34th percentile to the 62nd percentile.

Level 3 will increase from the 50th percentile to the 78th percentile.

Level 4 will increase from the 67th percentile to the 95th percentile.

 

These percentiles are based on the DOL’s survey of salaries in specified job categories and geographic regions.

 

The interim final regulation will go into effect immediately upon publication on 10/8/2020 after it is posted in the Federal Register. It is being pushed through without public comment, which could result in litigation. The DOL has said that it can bypass the public comment requirement because doing so would result in delays that would hurt the public interest. Citing Trump’s “Buy American and Hire American” executive order, as well as the recent high level of unemployment, along with the directive in a recent executive order to review the impact of employment-based immigration on U.S. workers.

 

The new prevailing wage calculation will not impact cases that are currently pending. It will affect LCAs submitted after the final rule goes into effect. It will also impact PERM prevailing wage submissions that are pending at the time the rule goes into effect. It will NOT impact previously issued wage determinations or LCAs.

 

This rule will significantly impact U.S. companies that hire foreign workers in H-1B or E-3 status and pay salaries at or near current prevailing wage levels. To meet prevailing wage levels, companies must pay base salaries at the required levels, which does not allow for the addition of bonus structures or the value of other employee benefits in the calculation. Companies may need to review compensation structures to meet the demands of these increased prevailing wage levels.

Please contact your Graham Adair attorney with any questions.

USCIS Premium Processing Fee Increase and Expansion to New Case Types

Premium processing services will be expanded under a recent federal government funding bill that was just passed by Congress. Under the bill, the cost of premium processing will increase, and will also be available to many types of cases where premium processing was not available.

 

The law takes effect immediately, however, it will likely take USCIS several weeks to implement the changes and begin accepting cases that are newly eligible for premium processing. It is also not clear at this time what the exact fees will be. At this point in time, the only numbers that have been provided are the upper limit caps.

 

This is a breakdown of what we know:

 

  • H-1B, L-1, O-1, TN, and other non-immigrant petitions filed on I-129: $2500. Timing for adjudication remains at 15 calendar days.

 

  • I-140 petitions for most case types: $2500. Timing for adjudication remains at 15 calendar days.

 

  • NEW: I-539 applications for dependents: upper limit of $1750. Timing for adjudication will be 30 days.

 

  • NEW: I-140 for Multinational Managers and National Interest Waiver: upper limit of $2500. Timing for adjudication will be 45 days.

 

  • NEW: EAD card applications: upper limit of $1500. Timing for adjudication will be 30 days.

 

USCIS will make announcements about accepting additional case types and the schedule for rolling out premium processing fee increases. We are watching for these announcements and will provide details as they become available.

New USCIS Fees Put on Hold

A federal judge in California issued an injunction on Tuesday preventing the USCIS from putting in place a new fee schedule.  The new fee schedule was set to go into effect on October 2, 2020, but as of now that will not happen.  On the issue of whether there was proper authority within the Department of Homeland Security to implement the new fee structure, the judge determined that there was sufficient uncertainty and temporarily blocked it from going into effect.

 

This means that for the time being, the current fee schedule will stay in effect.  The government will no doubt challenge this preliminary injunction in the 9th Circuit Court of Appeals, but it is unclear how long that process will take.  It is important to note that this is a very fluid situation and the new fee schedule could go into effect with almost no notice.

 

We will continue to monitor this situation closely and publish new information as it becomes available.

Insights on Proposed H-1B Regulation Changes

The American Immigration Lawyers Association (AILA) has published some information on the possible regulatory changes that could be coming in the near future for the H-1B classification.  According to AILA, we can anticipate several proposed changes to the H-1B regulations.  These changes could include redefining “specialty occupation” to make it more restrictive than the current definition.  Changes to the rules around “employer-employee” relationships as it relates to 3rd party worksite placements, including changes to LCA requirements to make the 3rd party host part of the LCA process, are apparently being considered.  It is also anticipated that the Department of Labor will adjust prevailing wage requirements, which would impact H-1B petitions.

 

It is anticipated that these rules will be published as interim final rules and will go into effect immediately upon publishing.  It is also anticipated that there will be lawsuits filed to challenge the new regulations, which could lead to injunctions that would delay implementation of these new rules.

 

AILA anticipates that these rules are likely to be rolled out within the next 30 days.

 

Graham Adair is monitoring these rules very closely and will provide additional information as it becomes available.

The People’s Republic of China – COVID-19 Update

Effective September 28, 2020, The People’s Republic of China, through the Ministry of Foreign Affairs and the National Immigration Administration, announced that foreign nationals with valid residence permits issued for work, personal matters, or family reunions, will be allowed to enter China without needing to apply for a new visa. Chinese consulates and embassies will be renewing said visas if they have expired after March 28, 2020 provided that the purpose of the foreign national’s visit to China remains unchanged.

This measure is specifically targeting the temporary suspension of entry by foreign nationals holding valid Chinese visas or residence permits issued on March 26, 2020. The partial lifting of the travel ban could signal the start of a different enforcement attitude and a trend towards immigration “normalization” in China.

Graham Adair is closely monitoring all global immigration trends and providing updates as they are received. Please contact your Graham Adair attorney with any case-specific questions.

UPDATE: October Visa Bulletin Surge Coincides with Increased Fees

As an update to our news alert from yesterday, USCIS initially indicated that it would use the Final Action Dates chart as it normally does. However, later in the day USCIS updated its filing notice website to indicate that it would actually accept cases filed under the Dates for Filing chart.

 

This is significant because many categories surged forward from the Final Action Dates chart in September to the Dates for Filing Chart for October. For EB-3 India, this meant a move of approximately 5 years. EB-1 for China and India moved about 2.5 years.

 

This movement provides many additional applicants to file applications for Adjustment of Status in October. We anticipate that USCIS will receive an unusually high volume of cases within this short 30-day window. This will likely result in processing delays as USCIS assimilates these cases. Of particular consequence, this could mean significant delays in the issuance of cards for EAD work authorization and advance parole for travel.

 

We are in the process of contacting clients who are eligible to file in October. Please contact your Graham Adair attorney with any questions.

October Visa Bulletin Surge Coincides with Increased Fees

This morning, the U.S. Department of State issued the October Visa Bulletin, which shows modest gains under the Final Action Dates chart. China saw the biggest movement in the EB-3 category, a move of 4.5 months. Similarly, India saw its biggest gain of 3 months in the EB-3 category. All other countries, including Mexico, Philippines, Vietnam, El Salvador, Guatemala, and Honduras, which had retrogression in the EB-3 category, are now current.

 

The primary question is whether USCIS will direct applicants to use the Final Action Dates chart, as they normally do, or the Dates for Filing chart. If it’s the latter, then many additional priority dates will become current, especially in EB-3 for India, which moved more than 5 years from the September Visa Bulletin. EB-1 for China and India also saw significant movement of about 2.5 years. USCIS will advise on which chart to use no later than October 1, 2020.

 

This surge in dates coincides with a significant change in the fee structure for USCIS. The biggest change in the permanent residency process is the unbundling of fees for I-485 Adjustment of Status. Until the end of September, the I-485 filing fee is $1140, which includes applications for an EAD card for work and advance parole for travel. Starting October 1, 2020, USCIS will unbundle that I-485 fee and require additional fees for EAD cards and advance parole. The EAD application will require a $550 government fee, and the advance parole application fee will be $590.

 

If USCIS uses the Dates for Filing chart, there will be a massive surge in applications for Adjustment of Status, many of which will include the additional fees of $550 and $590 for EAD cards and advance parole, respectively. Considering that many thousands of new cases would be filed in a very short period of time, it’s possible future visa bulletins could retrogress many dates that were current under the October Visa Bulletin, which would create a scenario wherein applicants are required to pay those $550 and $590 fees annually to maintain their EAD cards and advance parole.

 

We are watching the visa bulletin closely and will send an announcement once USCIS indicates which chart will be used for permanent residence applications.

I-9 Update: I-797 Approvals Can Be Accepted in Lieu of EAD Cards

Citing COVID-19, USCIS has been experiencing significant delays in issuing EAD cards. USCIS has therefore announced that I-797 approvals with a notice of action date from December 1, 2019 to August 20, 2020 are acceptable as documentation to satisfy work eligibility for I-9 purposes.

 

Employers should note that I-797 approvals can only be used to satisfy work eligibility, and not identity. If an I-797 approval is used for work eligibility, the employee must also present a List B document to prove identity. By December 1, 2020, employers must re-verify any employee who presented an I-797 approval.

 

We will continue to provide updates on changes to the I-9 process due to the pandemic. In the meantime, please contact your Graham Adair attorney with any questions.

Clarifications to Suspension of the Entry of Immigrants and Nonimmigrants

On June 22, 2020, President Trump signed Presidential Proclamation 10052, which suspends the entry to the United States of certain foreign nationals who present a risk to the U.S. labor market during the economic recovery following the COVID-19 outbreak.  The Proclamation included an exception for individuals whose entry is in the national interest as determined by the Secretary of State and the Secretary of Homeland Security.

The State Department recently enumerated a non-exhaustive list of the types of travel by H-1B, L-1A, L-1B and J-1 nonimmigrants that may be considered to be in the national interest and thus exempt from application of P.P. 10052.

The following national interest travel exceptions apply for H-1B applicants:

  • Travel as a public health or healthcare professional, or researcher to alleviate the effects of the COVID-19 pandemic, or to conduct ongoing medical research in an area with a substantial public health benefit.
  • Travel supported by a request from a U.S. government agency or entity to meet critical U.S. foreign policy objectives or to satisfy treaty or contractual obligations.
  • Travel by applicants seeking to resume ongoing employment in the United States in the same position with the same employer and visa classification.  Forcing employers to replace employees in this situation may cause financial hardship.  Consular officers can refer to Part II, Question 2 of the approved Form I-129 to determine if the applicant is continuing in “previously approved employment without change with the same employer.”
  • Travel by technical specialists, senior level managers, and other workers whose travel is necessary to facilitate the immediate and continued economic recovery of the United States.  Consular officers may determine that an H-1B applicant falls into this category when AT LEAST TWO of the following five indicators are present:
    • The petitioning employer has a continued need for the services or labor to be performed by the H-1B nonimmigrant in the United States – this indicator is only present for cases with an LCA approved during or after July 2020 as there is an indication that the petitioner still has a need for the H-1B worker.  For LCAs approved by DOL before July 2020, this indicator is only met if the consular officer is able to determine from the visa application the continuing need of petitioned workers with the U.S. employer.  Regardless of when the LCA was approved, if an applicant is currently performing or is able to perform the essential functions of the position for the prospective employer remotely from outside the United States, then this indicator is not present.
    • The applicant’s proposed job duties or position within the petitioning company indicate the individual will provide significant and unique contributions to an employer meeting a critical infrastructure need.  Critical infrastructure sectors are chemical, communications, dams, defense industrial base, emergency services, energy, financial services, food and agriculture, government facilities, healthcare and public health, information technology, nuclear reactors, transportation, and water systems.  Employment in a critical infrastructure sector alone is not sufficient; the consular officers must establish that the applicant holds one of the two types of positions noted below:
  • Senior-level placement within the petitioning organization or job duties reflecting performance of functions that are both unique and vital to the management and success of the overall business enterprise; OR
  • The applicant’s proposed job duties and specialized qualifications indicate the individual will provide significant and unique contributions to the petitioning company.
  • The wage rate paid to the H-1B applicant meaningfully exceeds the prevailing wage rate by at least 15 percent (see Part F, Questions 10 and 11 of the LCA) by at least 15 percent.
  • The H-1B applicant’s education, training and/or experience demonstrate unusual expertise in the specialty occupation in which the applicant will be employed.  For example, an H-1B applicant with a doctorate or professional degree, or many years of relevant work experience, may have such advanced expertise in the relevant occupation as to make it more likely that he or she will perform critically important work for the petitioning employer.
  • Denial of the visa pursuant to P.P. 10052 will cause financial hardship to the U.S. employer, i.e., the employer’s inability to meet financial or contractual obligations; the employer’s inability to continue its business; or a delay or other impediment to the employer’s ability to return to its pre-COVID-19 level of operations.

The following national interest travel exceptions apply for L-1A applicants:

  • Travel as a public health or healthcare professional, or researcher to alleviate the effects of the COVID-19 pandemic, or to conduct ongoing medical research in an area with a substantial public health benefit.
  • Travel based on a request from a U.S. government agency or entity to meet critical foreign policy objectives or satisfy treaty or contractual obligations.
  • Travel by applicants seeking to resume ongoing employment in the United States in the same position with the same employer and visa classification.   Forcing employers to replace employees in this situation may cause undue financial hardship.
  • Travel by a senior level executive or manager filling a critical business need of an employer meeting a critical infrastructure need. Critical infrastructure sectors include chemical, communications, dams, defense industrial base, emergency services, energy, financial services, food and agriculture, government facilities, healthcare and public health, information technology, nuclear reactors, transportation, and water systems.  An L-1A applicant falls into this category when AT LEAST TWO of the following three indicators are present AND the L-1A applicant is not seeking to establish a new office in the United States:
    • Will be a senior-level executive or manager;
    • Has spent multiple years with the company overseas, indicating a substantial knowledge and expertise within the organization that can only be replicated by a new employee within the company following extensive training that would cause the employer financial hardship; OR
    • Will fill a critical business need for a company meeting a critical infrastructure need

L-1A applicants seeking to establish a new office in the United States likely do NOT fall into this category, unless two of the three criteria are met AND the new office will employ, directly or indirectly, five or more U.S. workers.

The following national interest travel exceptions apply for L-1B applicants:

  • Travel as a public health or healthcare professional, or researcher to alleviate the effects of the COVID-19 pandemic, or to conduct ongoing medical research in an area with a substantial public health benefit.
  • Travel based on a request from a U.S. government agency or entity to meet critical foreign policy objectives or satisfy treaty or contractual obligations.
  • Travel by applicants seeking to resume ongoing employment in the United States in the same position with the same employer and visa classification.  Forcing employers to replace employees in this situation may cause undue financial hardship.
  • Travel as a technical expert or specialist meeting a critical infrastructure need.  The consular officer may determine that an L-1B applicant falls into this category if ALL THREE of the following indicators are present:
    • The applicant’s proposed job duties and specialized knowledge indicate the individual will provide significant and unique contributions to the petitioning company;
    • The applicant’s specialized knowledge is specifically related to a critical infrastructure need; AND
    • The applicant has spent multiple years with the company overseas, indicating a substantial knowledge and expertise within the organization that can only be replicated by a new employee within the company following extensive training that would cause the employer financial hardship.

National interest exceptions are available for H-4, L-2, and J-2 dependents who will accompany or follow to join a principal applicant who has been granted a national interest exception to P.P. 10052.

Applicants who are subject to this Proclamation, but who believe they may qualify for a national interest exception or other exception, should contact their Graham Adair attorney to request an emergency appointment. We will need to articulate specific details as to why the employee should qualify for an exception.  While a visa applicant subject to the Proclamation might meet an exception, the applicant must first be approved for an emergency appointment request, and a final determination regarding visa eligibility will be made at the time of visa interview. Travelers who are subject to a regional COVID-19 restriction but who do not require a visa, such as ESTA travelers (i.e., those traveling on the Visa Waiver Program), should also contact us for how to request consideration for a national interest exception.

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