Categories News & Updates

Final Rule Reverts H-1B “Specialty Occupation” to Previous USCIS Standard

On October 8, 2020, the Department of Homeland Security issued an Interim Final Rule (IFR) titled “Strengthening the H-1B Non-Immigrant Visa Classification Program”. The IFR previously revised and narrowed the regulatory definition of and raised the standards for “specialty occupation” for H-1B nonimmigrant visa applicants.

On December 1, 2020, the U.S. District Court for the Northern District of California issued a judgment that blocked the implementation and enforcement of the IFR. In compliance with the vacatur, USCIS has vacated the IFR and restored the previous definition of and standard for the “specialty occupation” requirement.

Under the IFR, H-1B applicants were required to obtain a bachelor’s degree in the exact field related to their position. For example, under the rule, employers seeking software engineers would not be allowed to hire applicants with an information technology degree. Nor would they be allowed to use experience or a combination of experience and education as a bachelor’s degree equivalency. Now that the IFR has been vacated, applicants can satisfy “specialty occupation” by obtaining a bachelor’s degree in a field relevant to their profession, or a work experience equivalency.

If you have any questions, please contact your Graham Adair attorney.

Categories News & Updates USCIS

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 It is yet to be seen whether this rule will be modified or withdrawn before it goes into effect next year.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

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 Department of State News & Updates

Trump Extends Ban on Certain Immigration Applications

President Trump has extended Presidential Proclamations (P.P.) 10014 and 10052 through March 31, 2021. As previously reported, P.P. 10014 suspends the entry of immigrant visa applicants through consular processing.

P.P. 10052 suspends the entry of certain nonimmigrant visa applicants who have been deemed to present a risk to the US labor market during the economic recovery following the pandemic.  Specifically, this suspension applies to applicants for H-1B, H-2B, and L-1 visas; J-1 visa applicants participating in the intern, trainee, teacher, camp counselor, au pair, or summer work travel programs; and any spouses or children of covered applicants applying for H-4, L-2, or J-2 visas.

Please contact your Graham Adair attorney for case-specific advice.

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.