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 News & Updates USCIS

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.

Categories USCIS

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.

Categories USCIS

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.