Department of State Proposes to Eliminate ‘B-1 in Lieu of H’ Visa
On October 21, 2020, the Department of State announced a proposal to eliminate the B-1 visa “in lieu of” an H-1B specialty occupation. B-1 visa holders are prohibited from employment in the US and have a limited scope of permissible activities. Currently, the ‘B-1 in Lieu of H’ Visa is a viable alternative where a foreign national may qualify for an H-1B visa, but will be entering the United States on a specifically annotated B-1 visa to perform H-1B specialty occupation services for a specific and limited duration, while remaining on foreign payroll.
USCIS Increases Premium Processing Fees
In response to the Emergency Stopgap USCIS Stabilization Act passed by Congress, USCIS increased its premium processing fees on October 19, 2020 from $1,440 to $2,500 for all filings presently eligible for premium processing. The fee for those filing Form I-129 requesting H-2B or R-1 status will only go up to $1,500.
USCIS has yet to announce any expansion of premium processing, e.g. for national interest waiver and intracompany manager green card petitions, as permitted in the Act. Iandoli Desai and Cronin will continue to monitor and provide updates when available.
November Visa Bulletin Advances
Each month, the U.S. Department of State (DOS) publishes the Visa Bulletin, listing all "preference" categories and states whether or not a backlog exists for each one. In addition, the categories are folded into two charts: “Final Action” chart and a “Dates for Filing” chart for Family-Based immigration and Employment-Based immigration.
For November 2020, USCIS has indicated that for Employment-Based immigration, the “Dates for Filing Applications” chart should be used in establishing eligibility to file the I-485 Adjustment of Status petitions. This provides significant advancement in nearly all preference categories. This means that those who filed an Immigrant Petition [Form I-140] on or before the date given in the Visa Bulletin are able to file for permanent resident status [Form I-485].
Last month there was significant movement for China and India in the EB-1 preference category, resulting in many applicants from those countries filing Form I-485 to apply for permanent residency. That activity will continue in November where the category remains current and it is unclear for how long that trend will continue.
The EB-2 preference category remains “current” for all countries other than China and India which means that individuals in these categories may immediately file Form I-485 applications. China and India have held at October 1, 2016 and May 15, 2011, respectively.
The EB-3 preference category is now “current” for all countries other than China and India which means that individuals in these categories may also immediately file Form I-485 applications. China and India continue to be June 1, 2018 and January 1, 2015, respectively.
Because of the difference in dates on the two charts, Form I-485 applications filed now may be pending for lengthy periods of time; however, the opportunity to file the I-485 applications is available now. There are substantial benefits for some in applying sooner rather than later including employment authorization for dependents and the ability to travel internationally on Advance Parole instead of continually applying for visas at U.S. Embassies.
If you have questions about planning, please feel free to reach out and schedule a consultation with one of the attorneys (info@iandoli.com).
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.”