DHS and DOL Rules Set Aside by District Court

This message is meant only for those clients who have either an H-1B, H-1B1, E-3 or PERM matter with our firm. This information may impact any upcoming filings in those categories. If that does not apply to you, you may ignore this message.

DHS and DOL Rules Set Aside by District Court

On December 1, 2020, the U.S. District Court for the Northern District of California set aside two rules implemented by the Department of Labor (DOL) and by the Department of Homeland Security (DHS)  impacting prevailing wage levels and the H-1B visa process. The DOL rule became effective on October 8, 2020 and the DHS rule was set to become effective on December 7, 2020.

The DOL rule changed how prevailing wages were calculated, which resulted in a significant increase in prevailing wage levels for all occupations where the OES survey data is the prevailing wage source. This meant higher wages for positions associated with H-1B, H-1B1 and E-3 benefit requests as well as employment-based immigrant visa petitions relying on OES-based prevailing wage determinations. The DHS rule amended the criteria for specialty occupation positions in the H-1B context, among other changes.

The District Court decision means that both rules are set aside immediately and the prevailing wage calculations should revert back to those published prior to the introduction of the DOL rule in October.

DHS Proposes rule to Rules to Change H-1B Cap Selection Process

This message is meant only for employers who plan to submit an H-1B cap-subject petition in the FY21 cap lottery. If that does not apply to you, you may ignore this message.

DHS Proposes rule to  Rules to Change H-1B Cap Selection Process

On November 2, 2020, the Department of Homeland Security (DHS) announced a proposed rule change that would replace the H-1B “Cap” lottery with a wage-based selection process. The notice of proposed rulemaking has been published in the Federal Register and a 30-day comment period is open. If a final rule is later implemented after the comment period closes, U.S. Citizenship and Immigration Services (USCIS) would rank the submitted registrations or petitions based on the Occupational Employment Statistics (OES) wage levels, from Level IV (the highest) to Level I (the lowest). The new rule would not affect the order of selection between the regular cap and the advanced degree exemption, so USCIS would continue to first award 65,000 slots to the “Regular Cap” registrants, before using the same ranking and selection process to select registrations for the 20,000 “Master’s Cap” advanced degree exemption.

Paired with recent Department of Labor wage changes, this would mean, for example, that an H-1B petition for a Software Developer, Applications position in Phoenix would have better odds of selection in the H-1B cap if the employer offers the Level IV OES wage of $165,526/year as the salary instead of the Level I wage at $92,685/year, regardless of the actual minimum requirements for the position or the employer’s normal salary offering.

According to Sharvari Dalal-Dheini, Director of Government Relations for the American Immigration Lawyers Association, “This rule, even by the Trump administration’s own admission, clearly violates congressional intent, which rightfully prioritizes the selection of H-1B visas in the ‘order in which they are filed’ and does not limit who can file a petition to those who will pay the most.” We expect that once implemented, this regulation will be swiftly challenged in federal court.

Premium Processing Fee Increase Effective Oct. 19, 2020

Premium Processing Fee Increase Effective Oct. 19, 2020

This message is meant only for those clients who have a pending or upcoming filing that is eligible for premium processing, such as H-1B, L-1 and certain I-140 immigrant petitions. If that does not apply to you, you may ignore this message.

U.S. Citizenship and Immigration Services (USCIS) has announced that, effective October 19, 2020, the premium processing fee for all cases will increase from $1,440 to $2,500, except those from petitioners requesting H-2B or R-1 nonimmigrant status, which will increase from $1,440 to $1,500. Any premium processing request that is postmarked on or after October 19, 2020 must include the new fee.

Currently, only non-immigrant petitions filed using Form I-129 and certain I-140 immigrant petitions are eligible for premium processing. Although a new law signed on October 1, 2020 has authorized USCIS to expand premium processing to other categories, including national interest waiver immigrant petitions and EAD applications, USCIS has not yet expanded premium processing for such categories. Therefore, this announcement means that although the premium processing fees are increasing as of October 19 for cases that are already eligible for premium processing services, no expansion of premium processing to new categories has been announced yet.

New DOL and DHS Rules to Change H-1B Process and Prevailing Wage Levels

This message is meant only for those clients who have either an H-1B, H-1B1, E-3 or PERM matter with our firm. This information may impact any upcoming filings in those categories. If that does not apply to you, you may ignore this message.

New rules implemented by the Department of Labor (DOL) and by the Department of Homeland Security (DHS) will significantly impact prevailing wage levels and the H-1B visa process. Both rules will be published in the Federal Register on October 8, 2020. The DOL rule will become effective on the date of publication while the DHS rule will become effective 60 days after publication.

The DOL rule will amend regulations governing permanent labor certifications and labor condition applications (LCAs) by changing how prevailing wage levels are calculated, which will result in higher prevailing wages for all occupations where the OES survey data is the prevailing wage source. The new rule will only apply to pending or new applications for prevailing wage determination and new LCAs filed on or after October 8, 2020. The new rule will not apply to any previously approved prevailing wage determinations, permanent labor certification applications, or LCAs. The DOL rule will result in higher wages for positions associated with H-1B, H-1B1 and E-3 benefit requests as well as employment-based immigration visa petitions that rely on OES-based prevailing wage determinations.

The DHS rule will amend the criteria for specialty occupation positions in the H-1B context, among other changes. The DHS rule will include the following changes:

  • Petitioners will have to establish that the bachelor’s degree in a specific specialty or its equivalent is a minimum requirement by showing that this is always the requirement for the occupation as a whole, the occupational requirement within the relevant industry, the petitioner’s particularized requirement, or because the position is so specialized, complex or unique that it is necessarily required to perform the duties of the specific position.
  • For third-party worksite placements (where the beneficiary will work at end-client locations or, for example, a physician who will work for a private practice group at a hospital or other medical facility), DHS will require the petitioner to submit evidence such as contracts, work orders, or other similar evidence to establish that the beneficiary will perform services in a specialty occupation and that the petitioner will have an employer-employee relationship with the beneficiary.
  • The beneficiary’s worksite will be considered a relevant factor when determining whether an employer-employee relationship exists.
  • Third-party placement petitions will be limited to a maximum period of a year.
  • The definition of “employer-employee relationship” will be revised and will include a list of 11 factors that USCIS will consider when determining whether there is an employer-employee relationship between the petitioner and the beneficiary.

Because both rules are expected to significantly alter the interpretation of how H-1B cases have been handled to date, litigation over both rules is expected over the next few weeks and months.

USCIS Prepares to Furlough Thousands of Workers

USCIS Prepares to Furlough Thousands of Workers

USCIS has notified approximately 13,400 of its employees that they will be administratively furloughed when the agency’s funding runs out around August 3, 2020. Although USCIS is a fee-funded agency, multiple news agencies have reported that frequent policy changes, suspension of income-generating immigration programs, and the agency’s focus on vetting and enforcement have caused the budget crisis.

USCIS announced in May 2020 that emergency funding of $1.2B would be needed to continue operations. However, President Trump’s administration has yet to file a formal budget request with the Office of Management and Budget which would inform Congress of the funds needed to prevent furloughs. Therefore, it is unclear if supplemental funding will be approved before furloughs are implemented. If supplemental funding is approved before August 3rd, it is possible that the furloughs may be averted.

Although the agency will continue to accept filings while the employees are furloughed, we anticipate that once the furloughs are implemented, processing times for petitions and applications pending with USCIS will increase substantially. These delays will be complicated by the ongoing COVID-19 pandemic as most foreign workers will not be able to travel abroad to take advantage of faster processing times at U.S. Consular Posts and Embassies.

Our law firm is monitoring the situation closely and will provide additional updates as they become available. If you have questions, please contact our office.

President Trump Issues Amended Proclamation to Clarify Restrictions on certain H/L/J Entries

President Trump Issues Amended Proclamation to Clarify Restrictions on certain H/L/J Entries

On June 29, 2020, President Trump issued an amendment to Proclamation 10052, suspending entry of certain H/L/J workers to the United States. This amendment notes that the limit on entry to the U.S. applies to any individual who does not have a valid nonimmigrant visa in the same category in which he or she is seeking entry to the United States. The proclamation now applies to individuals who:

  1. Were outside the U.S. on or after June 24, 2020;
  2. Did not, on June 24, 2020, have a valid nonimmigrant visa in the same category in which they seek to reenter the U.S.; and
  3. Did not have an official travel document other than a visa (such as Advance Parole) valid on June 24, 2020.

For example, if you were outside the U.S. on the Proclamation’s June 24, 2020 effective date and seek to re-enter the U.S. as an H-1B nonimmigrant, you must have had an H-1B visa stamp valid as of June 24, 2020.

As a reminder, the Proclamation does not apply to workers in H-1B, H-2B, L-1, or J-1 status who were inside the United States as of the effective date of June 24, 2020. Canadian citizens are also exempt from both the amendment as well as the original Proclamation because they are visa exempt. Please contact our office if you have any plans to depart the U.S. while the proclamation is in effect, to ensure that you are eligible to re-enter the U.S.

U.S. businesses continue to raise concerns that such a broad suspension of employment authorized categories will negatively affect the country’s ability to recover from the current economic crisis brought on by the pandemic. Please contact our office with any questions.

President Trump Signs Executive Order Suspending Certain H, J, and L Visa Holders from Entering the U.S. Through 2020

President Trump Signs Executive Order Suspending Certain H, J, and L Visa Holders from Entering the U.S. Through 2020

This e-mail is intended to provide a summary of the Presidential Proclamation issued today (June 22, 2020). First, a quick takeaway: The Proclamation affects only certain individuals who are outside the U.S. on or after the effective date (June 24, 2020). If you, or your foreign national employee(s) are currently inside the U.S. without plans to travel, the order does not affect any request for extension of stay or change of status pending or soon to be filed to USCIS. Please read further to find out more.

On the afternoon of Monday, June 22, President Trump announced that he signed an Executive Order temporarily suspending certain nonimmigrants from entering the United States for the remainder of 2020. The Executive Order will apply to individuals who are outside of the U.S. on the effective date and do not already have a valid H, J, or L, nonimmigrant visa, transportation letter, boarding foil, or advance parole document. Other nonimmigrant visa classifications, and those who are already in the U.S. in H, J or L status, are not impacted by the new Executive Order.

The following classes of nonimmigrant visa applicants are subject to the new Executive Order:

·       H-1B or H-2B, and any dependent family members;

·       J, to the extent the alien is participating in an intern, trainee, teacher, camp counselor, au pair, or summer work travel program, and any dependent family members; and

·       L, and any dependent family members.

Importantly, the following nonimmigrant individuals are exempt from the order:

·       Individuals inside the United States on the effective date of the proclamation;

·       Individuals with a nonimmigrant visa that is valid on the effective date of the proclamation;

·       Individuals with an official travel document other than a visa (such as transportation letter, an appropriate boarding foil, or an advance parole document) that is valid on the effective date of the proclamation or issued on any date thereafter that permits him or her to travel to the United States and seek entry or admission.

·       Any lawful permanent resident of the United States;

·       Any individual who is the spouse or child of a U.S. citizen;

·       Any individual seeking to enter the U.S. to provide temporary labor or services essential to the United States food supply chain; and

·       Any alien who entry would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.

The proclamation instructs the Secretary of State, the Secretary of Labor, and the Secretary of Homeland Security to define which individuals are considered “in the national interest,” including those who:

·       Are critical to the defense, law enforcement, diplomacy, or national security of the U.S.;

·       Involved with the provision of medical care to individuals who have contracted COVID-19 and are currently hospitalized;

·       Involved with the provision of medical research at United States facilities to help the United States combat COVID-19; or

·       Are necessary to facilitate the immediate and continued economic recovery of the United States.

The Executive Order goes into effect at 12:01am Eastern Time on June 24, 2020. Although the restrictions will remain in place for the rest of 2020, the Executive Order does give government officials the opportunity to extend these restrictions.

The business community has heavily opposed the new Executive Order as the restrictions will prevent companies from recruiting talented and qualified foreign nationals for jobs that U.S. workers cannot fill. It is expected that this proclamation combined with the Executive Order suspending entry for immigrant visa holders will impact at least 525,000 foreign nationals this year.

Our office will reach out to impacted clients as quickly as possible to discuss available options.

USCIS Will Resume Premium Processing in Four Phases

 USCIS Will Resume Premium Processing in Four Phases

US Citizenship and Immigration Services announced today, May 29, 2020, that it will resume its premium processing services under a phased approach. “Premium processing” is the service by which USCIS guarantees initial adjudication of a case within 15 calendar days, for an additional $1440 filing fee. The service was suspended on March 20, 2020, and no requests for premium processing have been accepted by USCIS since that date. Below, please find the text of the USCIS announcement:

“Effective June 1, 2020, USCIS will accept Form I-907, Request for Premium Processing Service for all eligible Form I-140 petitions.

Effective June 8, USCIS will accept premium processing requests for: 

  • H-1B petitions filed before June 8 that are pending adjudication and are cap-exempt (for example, petitions filed by petitioners that are cap-exempt and petitions filed for beneficiaries previously counted toward the numerical allocations). 
  • All other Form I-129 petitions (non H-1B petitions) for nonimmigrant classifications eligible for premium processing filed before June 8 that are pending adjudication.

Effective June 15, USCIS plans on resuming premium processing for: 

  • H-1B petitions requesting premium processing by filing an I-907 concurrently with their I-129 (or request for a petition filed on or after June 8) and are exempt from the cap because: 
  • The employer is cap-exempt or because the beneficiary will be employed at a qualifying cap-exempt institution, entity or organization (such as an institution of higher education, a nonprofit research organization or a governmental research organization); or 
  • The beneficiary is cap-exempt based on a Conrad/IGA waiver under INA section 214(l).

Effective June 22, USCIS plans on resuming premium processing for all other Form I-129 petitions, including: 

  • All H-1B cap-subject petitions (including those for fiscal year 2021), including change of status from F-1 nonimmigrant status, for both premium processing upgrades and concurrently filed I-907s. 
  • All other Form I-129 petitions for nonimmigrant classifications eligible for premium processing and requesting premium processing by filing an I-907 concurrently with their I-129.

All dates are subject to change as USCIS continues to take on more premium processing requests and USCIS will announce any changes to these dates accordingly.”

 

Healthcare Workforce Resilience Act would help tens of thousands of foreign-trained physicians obtain their Green Cards faster

Healthcare Workforce Resilience Act would help tens of thousands of foreign-trained physicians obtain their Green Cards faster

At the beginning of May, S.3599 and H.R.6788, otherwise known as the Healthcare Workforce Resilience Act, was introduced in Congress with the goal of increasing the healthcare workforce in the United States. Specifically, the bill will make previously unused immigrant visa numbers available to both nurses and physicians who either already have an I-140 petition approved or whose I-140 petition is approved within 90 days after the current national emergency declaration ends. The Healthcare Workforce Resilience Act has found bipartisan support since its introduction. Over 40 cosponsors from both sides of the aisle have signed on to support America’s healthcare workforce in both the House of Representatives and the Senate.

Specifically, 25,000 visas will be reserved for nurses while 15,000 visas will be reserved for physicians. Perhaps most critical of all, the visa numbers used under this bill will be exempt from existing per-country limitations. If enacted, this bill would help alleviate the ever-growing backlog that some immigrant categories face.

We are reaching out to you today to ask for your support of the Healthcare Workforce Resilience Act which has numerous benefits for medical practices that employ these physicians and nurses. This bill will help our clients grow their workforce to prepare for additional COVID-19 outbreaks, allow your physicians to move to new locations immediately when needed, volunteer their skills during times of crisis, and save medical practices substantial financial resources.

The Healthcare Workforce Resilience Act will help bolster the U.S. healthcare workforce as concerns about additional waves or outbreaks of COVID-19 rise. Many foreign-trained healthcare workers hold H-1B status. But H-1B status is employer and location specific. The bureaucratic red tape can make it difficult for employers to quickly place these employees where they are most needed during the rapidly changing pandemic situation. If these healthcare workers were instead able to obtain their Green Cards, they could work at any location.

Another common problem with healthcare workers is that they often are not able to volunteer their time and services during public health crisis because of the limitation of H-1B status. Employees working pursuant to H-1B status must be paid a prevailing wage. As volunteer work is usually unpaid, but still considered “work” under USCIS regulations, healthcare workers are not able to meet the prevailing wage requirements to obtain H-1B status for volunteer work.

The investment in legal and filing fees for immigration services can create budgetary constraints for some medical practices. The Healthcare Worker Resilience Act will also save medical facilities and practices money – a critical resource during the pandemic. Once healthcare workers receive their Green Cards, employers will no longer need to budget for the cost of extending an H-1B employee’s status every few years.

While the Healthcare Workers Resilience Act has gained several co-sponsors over the last few weeks, more support is still needed. We encourage employers to contact their members of Congress today and urge them to not only commit to supporting the Healthcare Workers Resilience Act but to also join as a co-sponsor for this bill. You can find your Representative and Senators here. The American Immigration Lawyers Association also has a direct link available to contact your legislators here.

HHS Expands J-1 Waiver Program Eligibility

HHS Expands J-1 Waiver Program Eligibility

In a positive development, the federal department of Health and Human Services (“HHS”) has announced that it is expanding its eligibility criteria for J-1 physician clinical care waivers. HHS will now accept J-1 waiver applications from primary care providers and psychiatrists who commit to three years of service at a facility in or with a health professional shortage area (HPSA) score of 7 or higher. HHS is removing the requirement that the employer be either a Federally Qualified Health Center as defined under section 330 of the Public Health Service Act, a rural health clinic defined under section 1102 and 1871 of the Social Security Act, or a Native American/Alaskan Native tribal medical facility as defined by the Indian Self Determination and Education Assistance Act (P.L. 93-638).

As you may know, a physician who completes his or her residency or fellowship in J-1 status, sponsored by the Educational Commission on Foreign Medical Graduates, is subject to a two-year home residence requirement. Such J-1 physicians are ineligible to change to a different work visa status in the U.S., or to receive permanent residence, until they have obtained a J-1 waiver, or fulfilled their two-year home residence requirement.

With this announcement, HHS will now accept J-1 waiver applications from primary care and psychiatrist physician applicants committing to work in an area with a HPSA score of 7 or higher, regardless of the status of the employer. Other requirements remain, and may be reviewed on HHS’s website, here. This expansion will open the door to additional J-1 physician waivers and will relieve some of the pressure on state Conrad 30 J-1 waiver programs.

If you have any questions regarding how this announcement may affect your company’s eligibility for an HHS J-1 waiver, please contact a member of our team.