Categories Department of Labor Department of State News & Updates USCIS

Looming government shutdown’s anticipated impact on immigration

The Senate failed on Monday to pass a key procedural FY 2022 federal budget vote to advance the House-passed short-term government funding bill. If lawmakers fail to reach an agreement, U.S. government funding could expire and lead to a full federal government closure on 12:01 am on October 1, 2021.

What impact does this have on immigration processing? Each federal agency would have its own shutdown plan, which will coordinated by the Office of Management and Budget. However, based on prior shutdowns in previous years, the following should be expected:

Immigration operations that should remain in operation:

  • Customs and Border Protection (CBP): CBP is likely to continue processing immigration applications at the border and performing inspection functions.
  • Immigration and Customs Enforcement: ICE enforcement activities and operations of the Student and Exchange Visitor Information System (SEVIS) should continue.
  • SAVE System (USCIS database used by government agencies such as state motor vehicle departments to verify an applicant’s immigration status when processing applications for benefits).

Immigration operations that will likely be suspended:

  • Department of Labor (DOL): As the DOL would likely be categorized as a non-essential function, DOL immigration functions will likely be suspended. No PERM applications, labor condition applications (LCAs), prevailing wage determinations (PWDs) or applications for temporary labor certification would be processed. The agency would not accept PERM applications or audit responses, LCAs or prevailing wage requests either online or by mail.
  • E-Verify: Employers should expect to be unable to initiate E-Verify queries or resolve tentative non-confirmations, and would not be expected to meet the usual E-Verify deadlines until the program is reauthorized. Please note, employers should not take any adverse action against any employee whose employment eligibility verification cannot be confirmed in E-Verify due to the shutdown. All employers will remain subject to Form I-9 obligations and deadlines as usual.
  • Conrad 30 Program

Immigration operations that will be potentially experience further processing delays:

  • U.S. Citizenship and Immigration Services (USCIS): The USCIS should continue to process applications but processing delays, already widespread, would continue or worsen. Appointments at USCIS local offices and Application Support Centers should not be affected by the shutdown, though COVID-19 precautions are still in place.
  • Department of State: Some passport offices may be affected if they are located in federal buildings that are closed due to the shutdown, but if not, should continue operations. Although the State Department’s visa processing and U.S. citizenship document functions are not expected to be suspended, they may be further affected by reduced staffing and other effects of the COVID-19 pandemic.

We will continue to monitor the situation and provide updates as they become available. In the meantime, please contact your Graham Adair attorney with any questions.

Categories Department of Labor News & Updates USCIS

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.

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 Department of Labor News & Updates

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.

Categories Department of Labor News & Updates USCIS

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.