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 It is yet to be seen whether this rule will be modified or withdrawn before it goes into effect next year.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.

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.

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.

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.

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.

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