Categories Compliance Department of Labor News & Updates USCIS

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.

Categories Compliance News & Updates USCIS

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.

Categories Compliance

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.

Categories Compliance Department of Labor News & Updates USCIS

New Executive Order to Review H-1B Impact on U.S. Workers

Today’s executive order does not create any immediate change to H-1B workers.

 

This most recent executive order on immigration brings H-1Bs under scrutiny in two different respects:

 

  • It directs federal agencies to review instances where H-1B workers provided services, whether through contract or subcontract, that may have negatively impacted U.S. workers. Agencies have 120 days to submit their report. Depending on the findings, further action may be taken to restrict the hiring and employment of H-1B workers by federal agencies.

 

  • It tasks the Department of Labor and the Department of Homeland Security with ensuring adequate protection of U.S. workers. While the executive order does not detail what this directive entails specifically, based on previous measures this may involve LCA audits, an increase in H-1B worksite visits, and increased requests for evidence based on LCA conditions, including job classifications and wage levels. The Secretaries of Labor and Homeland Security have 45 days to take action to implement any protections that are deemed necessary, so we will likely see some changes soon.

 

We are closely monitoring this situation and will provide updates as we have them. In the meantime, please contact your Graham Adair attorney with any questions.

Categories Compliance News & Updates

DHS Further Extends Flexibility in I-9 Verifications

On March 20th, DHS deferred the physical examination requirement of work authorization documents for Form I-9.? This allowed employers to inspect Section 2 documents via video link, fax, or email, as long as specific notation is entered in the “Additional Information” field on Section 2.? You can find our news alert on the initial guidance here.

 

Due to continued precautions related to COVID-19, DHS extended this flexibility for another 30 days to August 19th.

 

If you have any questions on how to complete the Form I-9 during these times, please contact your Graham Adair representative.

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