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 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.

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.

Categories Global News & Updates

The People’s Republic of China – COVID-19 Update

Effective September 28, 2020, The People’s Republic of China, through the Ministry of Foreign Affairs and the National Immigration Administration, announced that foreign nationals with valid residence permits issued for work, personal matters, or family reunions, will be allowed to enter China without needing to apply for a new visa. Chinese consulates and embassies will be renewing said visas if they have expired after March 28, 2020 provided that the purpose of the foreign national’s visit to China remains unchanged.

This measure is specifically targeting the temporary suspension of entry by foreign nationals holding valid Chinese visas or residence permits issued on March 26, 2020. The partial lifting of the travel ban could signal the start of a different enforcement attitude and a trend towards immigration “normalization” in China.

Graham Adair is closely monitoring all global immigration trends and providing updates as they are received. Please contact your Graham Adair attorney with any case-specific questions.