USCIS Notice of Creating Wage Level Selection Process for H-1Bs

On October 28, 2020, Department of Homeland Security (DHS) proposed to replace the H-1B CAP random selection process with a wage-based selection process based on the highest Occupational Employment Statistics (OES) prevailing wage level that the proffered wage equals or exceeds for the relevant Standard Occupational Classification (SOC) code and area(s) of intended employment. The proposed rule was published on November 2, 2020 and comments on the rule must be submitted on or before December 2, 2020.

Please note that this rule will NOT take effect until a Final Rule is published and made effective.

The following is a list of some of the key provisions of the proposed rule:

• If more registrations are received during the annual initial registration period than necessary to reach the applicable numerical allocation, USCIS will rank and select the registrations received on the basis of the highest OES wage level that the proffered wage equals or exceeds for the relevant SOC code and in the area of intended employment, beginning with OES wage level IV and proceeding in descending order with OES wage levels III, II, and I.

• If the proffered wage falls below an OES wage level I, because the proffered wage is based on a prevailing wage from another legitimate source (other than OES) or an independent authoritative source, USCIS will rank the registration as OES level I.

• After completion of the selection process for the regular 65,000 H-1B cap, USCIS will utilize the same ranking and selection process to meet the advanced-degree exemption if a sufficient number of registrations were submitted during the annual initial registration period to reach the advanced-degree exemption.

• If USCIS receives and ranks more registrations at a particular wage level than the projected number needed to meet the applicable numerical allocation, USCIS will randomly select from all registrations within that particular wage level to reach the applicable numerical limitation.

• If the H-1B beneficiary will work in multiple locations, USCIS will rank and select the registration based on the lowest corresponding OES wage level that the proffered wage will equal or exceed.

• Where there is no current OES prevailing wage information for the proffered position, USCIS will rank and select the registration based on the OES wage level that corresponds to the requirements of the proffered position.

• The electronic registration form (and the H-1B petition) will be amended to require provision of the highest OES wage level that the proffered wage equals or exceeds for the relevant SOC code in the area of intended employment.

• USCIS may deny or revoke approval of a subsequent new or amended H-1B petition filed by the petitioner, or a related entity, on behalf of the same beneficiary, if USCIS determines that the filing of the new or amended petition is part of the petitioner’s attempt to unfairly decrease the proffered wage to an amount that would be equivalent to a lower wage level, after listing a higher wage level on the registration to increase the odds of selection.

For more information, please see AILA’s press statement on this proposed rule. Iandoli Desai & Cronin will continue to monitor the situation and provide updates as the new rule progresses through the Notice and Comment period.

Lawsuits Challenge New Department of Labor Prevailing Wage Rule for H-1Bs

Since Department of Homeland Security (DHS) proposed changes to the Department of Labor’s (DOL) prevailing wage rule for H-1Bs, three separate lawsuits have been filed challenging the rule.

In one, seventeen individual and organizational plaintiffs, represented by the American Immigration Lawyers Association (AILA) and members of AILA's Board of Governors, filed a complaint seeking an injunction to stop the DOL interim final rule changing the prevailing wage rates issued at the beginning of October 2020. A motion hearing for a preliminary injunction is set for November 13, 2020. (Purdue, et. al., v. Scalia, et. al., 10/19/20)

In another, the U.S. Chamber of Commerce, along with the National Association of Manufacturers, the Presidents’ Alliance on Higher Education and Immigration, and other organizations and universities filed a complaint in the U.S. District Court for the Northern District of California against the DHS and DOL H-1B wage rules. A motion hearing is set for November 23, 2020. (Chamber of Commerce, et al., v. DHS, et al., 10/19/20)  The complaint notes:

“These rules are extraordinary: If left unchecked, they would sever the employment relationship of hundreds of thousands of existing employees in the United States, and they would virtually foreclose the hiring of new individuals via the H-1B program. They would also gut EB-2 and EB-3 immigrant visas, which provide for employment-based permanent residence in the United States.”

Iandoli Desai & Cronin will continue to monitor the situation and provide updates in future newsletters.

USCIS Rule Revising Definition of "Specialty Occupation" and Department of Labor Rule on Computation of Prevailing Wages

On October 8, 2020, Department of Homeland Security (DHS) issued the “Strengthening the H-1B Nonimmigrant Visa Classification Program” Interim Final Rule revising the definition of "Specialty Occupation," and the Department of Labor (DOL) issued the “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States” Interim Final Rule, amending the regulations governing permanent labor certifications and Labor Condition Applications to incorporate changes to the computation of prevailing wage levels. DHS states that the new H-1B rule will take effect in 60 days, or Dec. 7, 2020 and will:

• Narrow the definition of “specialty occupation”;

• Require companies to make “real” offers to “real employees”; and,

• Enhance DHS’s ability to enforce compliance through worksite inspections and monitor compliance before, during, and after an H1-B petition is approved.

The DOL interim final rule amending the regulations governing permanent labor certifications and Labor Condition Applications incorporates changes to the computation of prevailing wage levels took effect on October 8, 2020.  The changes are having a dramatic impact on the minimum prevailing wage causing increases of tens of thousands of dollars. The interim final rule applies to the following:

• Any new or pending Application for Prevailing Wage Determinations Form ETA-9141, used to support a labor certification or PERM application filed with the DOL’s National Prevailing Wage Center (NPWC) as of the effective date of the regulation;

• A Labor Condition Application for Nonimmigrant Workers (LCA), Form ETA-9035/9035E (required to submit with an H-1B petition), filed with DOL on or after the effective date of the regulation where the government’s Occupational Employment Statistics survey data is the prevailing wage source, and where the employer did not obtain the prevailing wage determination from the NPWC prior to the effective date of the regulation.

One strategy to mitigate the effects of the new rule is to utilize alternative or private wage surveys.  Alternative surveys have always been allowed but employers may see pushback from DOL on whether the survey meets the regulatory requirements. 

Iandoli Desai & Cronin will continue to monitor the situation and provide updates as these new rules go into effect.

I-9 Requirements Flexibility Extended for Additional 60 Days

On September 15, 2020, the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced an extension of certain flexibilities for employers in complying with requirements related to Form I-9, Employment Eligibility Verification. This temporary guidance was set to expire September 19, but because of ongoing precautions related to COVID-19, DHS has extended the policy for an additional 60 days. 

This provision only applies to employers and workplaces that are operating remotely. USCIS said employers must monitor the DHS and ICE websites for additional updates about when the extensions end and normal operations resume. E-Verify participants who meet the criteria and choose the remote inspection option should continue to follow current guidance and create cases for their new hires within three business days from the date of hire.

E-Verify Seminars from USCIS

U.S. Citizenship and Immigration Services (USCIS) offers free employer training to explain and demonstrate how to complete Form I-9, Employment Eligibility Verification and E-Verify.  

USCIS released its updated schedule for webinars on E-Verify, with sessions for both employers and employees: https://www.e-verify.gov/about-e-verify/e-verify-webinars 

Who may be interested in attending? 

• Employers and business owners 

• Human resources specialists and payroll administrators 

• Federal contractors

• E-Verify users 

• Anyone interested in learning about Form I-9 and the E-Verify program 

Department of Labor’s Electronic PERM Certifications

The Office of Foreign Labor Certification (OFLC) announced on September 25, 2020, that it is permanently adopting the electronic issuance of PERM labor certifications to employers (and their authorized attorneys or agents).In circumstances where employers submit PERM applications by mail and are unable to receive the certified ETA Form 9089 documents by email, OFLC will continue to send the documents by mail. 

U.S. Revokes More Than 1,000 Visas for Chinese Students, Researchers

As reported in news outlets in September 2020, the US has revoked visas for more than 1,000 Chinese nationals under a presidential measure denying entry to students and researchers deemed security risks.   

Reuters reported “State Department spokeswoman said the visa action followed a May 29 proclamation by President Donald Trump as part of the U.S. response to China’s curbs on democracy in Hong Kong. ‘As of September 8, 2020, the department has revoked more than 1,000 visas of PRC nationals who were found to be subject to Presidential Proclamation 10043 and therefore ineligible for a visa,’ she said.”

OPT Students Without Employer Information in SEVIS are auto-terminating

As reported in September 2020, the Student and Exchange Visitor Program (SEVP) is conducting a review of SEVIS records for optional practical training (OPT) participants and is mailing notices directly to students who have not reported employer information and have exceeded 90 days of unemployment.  

If the student’s SEVIS record is not updated, SEVP will “terminate” the student’s SEVIS record to reflect the lack of employer information and that the student may have violated their status either by failing to timely report OPT employment or by exceeding the permissible period of unemployment while on OPT.

Department of Homeland Security (DHS) proposes to eliminate “duration of status” D/S for F and J visa holders

On September 25, 2020, the Department of Homeland Security (DHS) proposed a rule to eliminate duration of status (D/S) for F students and their dependents as well as for J exchange visitors and their dependents. Below is a listing of key proposed changes: 

• Eliminating D/S. Instead of being admitted for "duration of status" (D/S) as they currently are, individuals applying for admission in either F or J status (F-1 students, F-2 dependents, J-1 exchange visitors, and J-2 dependents) would be admitted for the length of time indicated by the program end date noted in their Form I-20 or DS-2019, not to exceed four years, unless they are subject to a more limited 2-year admission, plus a period of 30 days following their program end date. The proposed revisions to the J regulations closely align with the proposed changes for F nonimmigrants. 

• Groups subject to a limited 2-year admission instead of a 4-year admission. " DHS believes a shorter admission period, up to 2 years, would be appropriate for a subset of the F and J population due to heightened concerns related to fraud, abuse, and national security, as discussed below." 

  • Notably, School or exchange program not participating in E-Verify. Only a two year admission period for students at schools and exchange visitor programs who do not fully participate in E-Verify. In the preamble, DHS rationalizes that schools and exchange visitor programs "that are willing to go above and beyond to ensure compliance with immigration law in one respect are more likely to comply with immigration law in other respects," and that it has "less confidence" in schools and exchange programs "that are unwilling to do all they can to ensure they have a legal workforce." The proposed regulatory wording then makes clear that a school or program that is only partially enrolled in E-Verify (e.g., a single hiring center or department) would not be sufficient to avoid the two year admission limit for its students or exchange visitors, by requiring the school or program to be "a participant in good standing in E-Verify as determined by USCIS," which is then defined as: "Enrolled in E-Verify with respect to all hiring sites in the United States" at the time of the individual's admission in F-1 or J-1 status or at the time the individual files an application for an extension of or change to F-1 or J-1 status with USCIS, and "are in compliance with all requirements of the E-Verify program, including but not limited to verifying the employment eligibility of newly hired employees in the United States; and continue to be participants in good standing in E-Verify at any time during which the alien is pursuing a full-course of study at the educational institution" or "the J-1 exchange visitor is participating in an exchange visitor program at the organization." 

• Reducing the F-1 "grace period" from 60 days to 30 days. "DHS believes that the F category, albeit distinct from M or J, shares a core similarity in that many aliens in these categories are seeking admission to the United States to study at United States educational institutions. Thus, DHS thinks that these categories should have a standard period of time to prepare for departure, or take other actions to extend, change, or otherwise maintain lawful status." 

• Limit on aggregate ESL study. F-1 students in a language training program would be restricted to a lifetime aggregate of 24 months of language study, which would include breaks and an annual vacation. 

• Limit on pursuing new F-1 programs at the same educational level. "DHS thus proposes to limit the number of times a student can change to another program within an educational level, such as to pursue another bachelor's or master's degree. Specifically, any student who has completed a program at one educational level would be allowed to change to another program at the same educational level no more than two additional times while in F-1 status, for a total of three programs for the lifetime of the student." 

• Limit on "reverse matriculation" by F-1 students. "An F-1 student who has completed a program at one educational level would be allowed to change to a lower educational level one time while in F-1 status." 

• F-1 cap-gap would be retained, and October 1 end date would be extended to April 1. On a positive note, DHS says: "With the consistently high volume of H-1B petitions each year, however, USCIS has been unable to complete adjudication of H-1B cap- subject petitions by October 1, resulting in situations where some individuals must stop working on October 1... To account for this operational issue, DHS is proposing... to provide an automatic extension of F-1 status and post-completion OPT, as applicable, until April 1 of the fiscal year for which the H-1B petition is filed." 

• I-539 as the extension of stay application form. "USCIS anticipates accepting the Form I-539, Application to Change/Extend Nonimmigrant Status, for this population but would like the flexibility to use a new form if more efficient or responsive to workload needs. Thus, DHS is proposing to use general language to account for a possible change in form in the future. If the form ever changes, USCIS would provide stakeholder’s advanced notice on its webpage and comply with Paperwork Reduction Act requirements." 

• Standards for DHS to approve an F-1 extension of stay. "DHS is proposing to eliminate a reference to “normal progress” with respect to seeking a program extension, and incorporate a new standard that makes it clear that acceptable reasons for requesting an extension of a stay for additional time to complete a program are: (1) compelling academic reasons; (2) a documented illness or medical condition; and (3) exceptional circumstances beyond the control of the alien." 

• Reinstatement. "[A] student’s failure to timely request from the DSO a recommendation for extension of the program end date, which would result in the DSO recommending an extension of the program end date in SEVIS after the end date noted on the most recent Form I-20 or successor form, would require the alien to file for a reinstatement of F-1 status, because the alien would have failed to maintain status and would be ineligible for an EOS... A request for reinstatement must be filed in the manner and on the form designated by USCIS, with the required fee, including any biometrics required by 8 CFR 103.16. DHS is also requiring F-2 dependents seeking to accompany the F-1 principal student to file applications for an EOS or reinstatement, as applicable. These requirements are consistent with current provisions." 

• Dependents. F-2 and J-2 dependents seeking to accompany the F-1 or J-1 principal would need to file applications for an EOS or reinstatement, as applicable. If the dependent files a separate Form I-539, he or she would need to pay a separate Form I-539 filing fee. However, if the dependent files a Form I-539A as part of the primary applicant’s EOS request on a Form I-539, only one fee would be required... To qualify for an EOS, the F-2 or J-2 dependent would need to demonstrate the qualifying relationship with the principal F-1 or J-1 principal who is maintaining status, also be maintaining his or her own status, and not have engaged in any unauthorized employment. Extensions of stay for dependents would not be able to exceed the authorized admission period of the principal. 

Additional Resources from NAFSA (National Association of Foreign Service Advisors): 

• On Tuesday, October 13 (2pm-3pm ET), NAFSA will offer a discussion of the proposed rule.  You can register for the Responding to the DHS Proposal to Eliminate Duration of Status town hall online.  Space is limited, and the recording will be made available a couple of days after the session. 

• NAFSA's Proposal to Replace Duration of Status page reviews the proposed rule, and provides lots of further reading/ resources. 

• NAFSA's DHS Issues Proposed Rule to Eliminate Decades-Long Duration of Status Policy for International Students, Exchange Visitors full statement can be helpful to share with stakeholders who need to understand general impact but not detail. 

• For advocacy, NAFSA's Connecting our World is offering a Fight Back Against Duration of Status Change page, where requests can be sent to members of congress to speak out in support of international students.  NAFSA is also preparing a template for institutions to use in preparing a comment letter -- stay tuned. 

U.S. reaches agreement with Canada and Mexico to extend land border crossing restrictions due to Covid-19 pandemic

On September 18, 2020, the Department of Homeland Security (DHS) announced an extension of measures to limit all non-essential travel across the U.S. land borders with Canada and Mexico through October 21, 2020. DHS said in a statement, “The U.S., Mexican, and Canadian governments are taking necessary action to fight against this pandemic together.” DHS fact sheet: https://www.dhs.gov/news/2020/09/18/fact-sheet-dhs-measures-border-limit-further-spread-coronavirus