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.

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.

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.

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.

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.

New Executive Order Further Restricts U.S. Immigration

Today, President Trump issued an executive order further restricting immigration in light of the current Covid-19 pandemic.? This order extends the previous restrictions on new immigrant visas through the end of the year and adds certain nonimmigrant visa classifications to the list.

 

The new executive order will restrict new H-1B, H-2B, J, or L visas, and any dependents accompanying or following to join individuals in those classifications, which includes H-4 and L-2 spouses.? The order goes into immediate effect.

 

Individuals who hold valid H-1B, H-2B, J, or L visas as of today will be allowed to enter the U.S. This order will not impact our ability to file changes of status, extensions of status, change of employer petitions, adjustments of status, or amendments for those who are currently in the U.S.? Largely, this ban on new visas continues the status quo as U.S. consulates around the world continue to be closed and are not currently issuing new visas.

 

This will have an impact on those who are currently outside the U.S. and waiting for the consulates to reopen so that they can apply for visas, and those individuals will likely have to wait until next year to apply for their visas.? There are some limited exceptions to this rule for those who work in national security, health care or medical research directly related to Covid-19, or those who work in the food supply chain.

 

The order contains additional instructions to the secretaries of Homeland Security and Labor to investigate regulatory options to ensure that H-1B petitions and employment-based green card applications do not negatively impact U.S. workers.? We do not have any indication at this point as to what this would look like or when we can expect to see proposed regulations.

 

For further information please contact your Graham Adair attorney.

Staffing company compensates employees for H-1B program violations after investigation

Login Consulting Services Inc., a Southern California-based staffing and recruitment company, has paid $58,815 after an investigation by the Department of Labor found the company to be in violation of the H-1B program. Investigators discovered that the company had illegally charged visa fees to the employee, “benched” the worker, and paid another worker below the guaranteed hourly rate established in the Labor Conditions Application they had submitted.

?Employers who wish to hire guest workers must fully familiarize themselves with the H-1B foreign labor certification program. The program is there to help American companies find the highly skilled talent they need when there is a shortage of U.S. workers,? said Wage and Hour Division District Director Kimchi Bui, in Los Angeles, California. ?The resolution of this case demonstrates our commitment to safeguard American jobs, level the playing field for lawabiding employers, and ensure no one is being paid less than they are legally owed.”

Per the Department of Labor, “U.S. Citizenship and Immigration Services has established an email address dedicated to enable individuals (including both American workers and H-1B workers who suspect they or others may be the victim of H-1B fraud or abuse) to submit tips, alleged violations, and other relevant information about potential H-1B fraud or abuse. Individuals also can report allegations of H-1B violations by submitting Form WH-4 to the Division.”

Government Shutdown Would Impact Immigration

A partial government shutdown could occur tonight at midnight if Congress and the President do not reach an agreement on a spending bill or continuing resolution. Although the House passed a spending bill on Thursday night, the Senate will likely reject the spending bill, since it includes $5 billion for the proposed U.S.-Mexico border wall.

If there is a shutdown, it will have the most significant impact on our clients who are starting H-1B petitions or have PERM applications in the works, as the Department of Labor will be shut down. This will most likely lead to delays in case processing. The impact of the delays will depend largely on how long the shutdown lasts.?

We are following this situation carefully. Shutdowns can harm persons seeking immigration benefits. We are undertaking measures to ensure any impact to our clients is minimal.?For more frequent updates, please follow us on?Twitter?(@GrahamAdairLaw).

DOL Updates H-1B Labor Condition Application and Worker Complaint Form

The United States Department of Labor (DOL) has announced updates to the H-1B Labor Condition Application form (Form ETA-9035) and the worker complaint form (Form WH-4), intended to promote business compliance and transparency with the H-1B program.

The Labor Condition Application Form will require new details about H-1B worker employment, including the following:

  • All places of employment for H-1B workers, including short-term positions.
  • Estimated number of H-1B workers at each intended place of employment.
  • Clear identification of secondary entities using H-1B workers.
  • Documentation of H-1B workers’ degrees, for employers who claim exemption solely on the basis of education.

The worker complaint form will include new fields for further details about alleged H-1B program violations.

The Office of Foreign Labor Certification will announce the date of the new forms’ availability on their?website?in the coming weeks.

For further information on how this may affect your business, please consult with our attorneys.?For more frequent updates, please follow us on?Twitter?(@GrahamAdairLaw).

H-4 Spouses Can Get Work Authorization

The USCIS announced today that it will begin to extend employment authorization to certain H-4 visa holders.? USCIS will begin to accept H-4 employment authorization applications on May 26, 2015.? In order to be eligible for an H-4 Employment Authorization Document (EAD) an individual must meet one of the following criteria:

H-4 dependent spouses of H-1B nonimmigrants who:

  • Are the principal beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or
  • Have been granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act. The Act permits H-1B nonimmigrants seeking lawful permanent residence to work and remain in the United States beyond the six-year limit on their H-1B status.

This is great news for clients who have an approved I-140 but are unable to submit an Adjustment of Status application because of priority date retrogression.? We will continue to monitor developments on this change and will begin preparing H-4 EAD applications for clients as we get closer to the May 26, 2015 filing date.

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