Biden Administration Lifts Ban on Immigrant Visa Processing

Earlier this week, the Biden Administration lifted a ban that was put in place last year on the processing of immigrant visas (green cards) at U.S. consulates. While lifting this ban is good news for many who are awaiting the processing of their immigrant visa, we anticipate that there will still be delays in processing cases because of backlogs and reduced consular staffing caused by the pandemic.

 

The President has left in place the ban on nonimmigrant visas, such and H-1Bs and L-1s, that is set to expire on March 31, 2021. There are some exceptions to this ban, and it does appear that the ban will not be extended and will expire as scheduled.

 

Looking forward, we anticipate that there will be continued delays in getting visas from U.S. consulates while current pandemic restrictions are in place. However, the lifting of the ban on immigrant visas is good news for those who have been precluded from applying over the past several months. If you have questions about travel or your visa application, please contact your attorney at Graham Adair.

USCIS Announces the H-1B Lottery Registration Procedures for this Year

Today, USCIS announced the H-1B lottery registration window and process for the fiscal year (FY) 2022 H-1B lottery that will take place on or before March 31, 2021. Registration for the electronic lottery will be open from March 9 – March 25, 2021. Registration will open at noon Eastern time on the 9th and close at noon Eastern time on the 25th.

 

As in last year’s lottery, the registration fee is $10. USCIS has indicated that those selected in the lottery will be notified on or before March 31, 2021, and will be eligible to submit applications as early as April 1, 2021.

 

USCIS has also announced that the selection of H-1B cases in this year’s lottery will be completely random. A rule previously published that would have ranked cases for selection based on their prevailing wage level has been postponed until at least December 31, 2021. It is yet to be seen whether this rule will be modified or withdrawn before it goes into effect next year. For this year, the process will remain the same as in previous years.

 

If you have a case that you would like to get registered in the H-1B lottery, please reach out to your attorney at Graham Adair.

CDC Order Requires Negative COVID-19 Test Prior to US Entry

Effective January 26, 2021, ALL air passengers traveling internationally to the United States, including US Citizens and Lawful Permanent Residents, will require a negative COVID-19 viral test within three days prior to departure. Proof of the negative laboratory test result (paper or electronic copy) will be required at the time of boarding. If the air passenger has recently recovered from COVID-19, they will be required to provide documentation from a doctor’s office confirming recovery. Any passenger failing to provide the necessary and accurate documentation will be denied boarding.

 

Important takeaways from the CDC order are the following:

 

  • Applies to all passengers traveling internationally to the United States regardless of citizenship that are age 2 and older;
  • Passengers must take a viral test within 3 days prior to departure and provide a hard or digital copy of negative COVID-19 laboratory test results;
  • The name listed on the laboratory test results must match the name on the passenger’s passport, must reflect a negative result, and must include the method of testing to ensure it is a viral test.

 

Currently, the CDC order does not apply to land ports of entry. The new measure is intended to slow the spread of the virus as vaccinations are made available to the public at large. The official CDC press release can be found here.

 

Globally, several countries have also started to require a negative COVID-19 viral test prior to boarding, including the United Kingdom and Canada, among others. We anticipate that several more countries will follow a similar trend.

 

Global travelers should check with Graham Adair and their airline prior to international travel.

H-1B Cap Lottery System Modification – Final Rule

Tomorrow, January 8, 2021, the Department of Homeland Security will publish a final rule modifying the H-1B lottery ahead of Cap season, which starts in March. The rule modifies the manner in which the lottery is conducted by prioritizing applications received on the basis of the wage level of the position in relation to similar positions in the geographic area. This rule would eliminate the random selection process that has historically been used. Instead, cases that show a higher prevailing wage according to the corresponding LCA would be given preference over cases filed using lower prevailing wage levels.

 

The rule is set to go into effect 60 days from being published, which means it would apply to this year’s H-1B cap season.

 

The rule is likely to be challenged and could potentially be set aside for failure to follow the required administrative procedure for rulemaking. However, the Biden Administration has expressed support for the concept of H-1B cap allocation based on wage level, so we will be monitoring this situation closely and will provide updates as they become available.

EU-UK Trade and Cooperation Agreement’s Impact on Immigration

The UK and EU entered into the Trade and Cooperation Agreement last week, averting a no deal Brexit. The EU will apply the agreement provisionally from January 1, pending ratification, so that the European Parliament can consider the agreement before the EU ratifies it fully. This means the EU will have the opportunity to review whether the UK’s legislation fully implements the agreement.

 

UK and EU citizens who established EU free movement rights before December 31, 2020 retain them under the UK-EU Withdrawal Agreement if they have registered their settled status by June 30, 2021.

 

Visas may be required for travel between the UK and EU for those who have not established EU free movement rights. However, the Trade and Cooperation Agreement provides for visa-free short-term business trips of up to 90 days in any 180 period, if they fall within a limited list of permitted activities.

 

Our UK partner, Lewis Silkin, has authored an alert that provides more specifics on the impact to immigration.

 

We are continuing to monitor this situation and will provide updates as they become available.

Trump Extends Ban on Certain Immigration Applications

President Trump has extended Presidential Proclamations (P.P.) 10014 and 10052 through March 31, 2021. As previously reported, P.P. 10014 suspends the entry of immigrant visa applicants through consular processing.

 

P.P. 10052 suspends the entry of certain nonimmigrant visa applicants who have been deemed to present a risk to the US labor market during the economic recovery following the pandemic.  Specifically, this suspension applies to applicants for H-1B, H-2B, and L-1 visas; J-1 visa applicants participating in the intern, trainee, teacher, camp counselor, au pair, or summer work travel programs; and any spouses or children of covered applicants applying for H-4, L-2, or J-2 visas.

 

Please contact your Graham Adair attorney for case-specific advice.

Federal Court Sets Aside the DOL Wage Increase and the DHS H-1B Restrictions Rules

Yesterday, December 1, 2020, a federal judge in California issued an order setting aside two new rules from the Department of Labor and Department of Homeland Security, respectively. The first rule from the Department of Labor had gone into effect immediately and dramatically increased the prevailing wages that were required for H-1B and PERM applications. That rule has been set aside by the court as having improperly bypassed the normal notice and comment period required under federal law. It will likely take the Department of Labor a few days to revert back to the lower prevailing wage requirements. It is unclear as to whether the government will appeal this decision, but we do anticipate that even if there is an appeal that the rule will not be in effect while an appeal works its way through the court system. This was a widely expected outcome and will be welcome news to employers and employees alike.

 

The second rule from the Department of Homeland Security was set to go into effect next week, and it was also set aside by the federal judge in California. The rule would have enacted new restrictions and requirements around H-1B petitions. This outcome was also widely expected and is good news for employers who use the H-1B program.

 

Please reach out to your Graham Adair attorney if you have any questions and we will continue to provide updates as they become available on this situation.

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.

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