Tuesday, October 6th, 2020, the Department of Homeland Security H-1B Strengthening Rule and DOL Prevailing Wage Interim Final Rules were posted for public inspection. Both DHS and DOL have issued press releases regarding these changes.
Both the DHS and DOL regulations will be published tomorrow in the federal register publish and have a 30 day comment period.
The DOL rule will take effect tomorrow, Wednesday, October 7th, 2020. This rule changes the prevailing wage levels 1-4 from the 17, 34, 50 and 67th percentiles to 45, 62, 78 and 95 percentile of surveyed wages from BLS for H-1B, H-1B1, E-3 and I-140s. This means that all wage determinations made by the DOL starting tomorrow fall under this new regulatory construct, including any LCAs that are filed starting tomorrow.
The DHS regulation will have a 60-day delayed effective date. DHS, in its press release, stated that the regulation will:
Narrow the definition of “specialty occupation” as Congress intended by closing the over-broad definition that allowed companies to game the system;
Require companies to make “real” offers to “real employees,” by closing loopholes and preventing the displacement of the American worker; 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 H-1B program is the most common way professional workers achieve work authorization in the U.S. These two regulations will dramatically change how the H-1B Program has worked since the most recent changes in 1996.
Please contact SPS Immigration if you have questions regarding how this may impact your case.
On October 1, 2020, the Office of Information and Regulatory Affairs (“OIRA”), which is housed within the Office of Management and Budget (“OMB”), marked as “withdrawn” both the U.S. Citizenship and Immigration Services (“USCIS”) and U.S. Department of Labor (“DOL”) Interim Final Regulations (“IFR”). In an unusual move, OIRA has decided to not review these regulations but instead have passed them back to both agencies to publish immediately as an IFR. We expect these regulations to appear in the Federal Register as early as next week.
As background, on September 3, 2020, USCIS submitted an IRF titled, “Strengthening the H-1B Nonimmigrant Visa Classification Program.” Shortly thereafter, on September 16, 2020, the DOL submitted an IFR to OIRA entitled, “Restructuring of H-1B/H-1B1/E-3 and PERM Wage Levels.” USCIS and the DOL, rather than using the required administrative law Notice and Comment process by issuing a Notice of Proposed Rulemaking (“NPRM”) to give stakeholders the opportunity to comment on the impact of new regulations before implementing them, is seeking to release new regulations that would dramatically impact how the DOL levels the required wages employers must pay H-1B workers and the definition of “specialty occupation.” These two IFRs have been pending at OIRA since submission, and will dramatically change the very nature of the current H-1B program. The USCIS and DOL IFRs are expected to take effect immediately, without the opportunity for stakeholders to comment before the regulations were implemented, although USCIS may not implement them for 30 days. USCIS and DOL would then review comments from the public and could choose to make changes to the regulations in the future, but during that process which takes many months the regulations would be in full effect.
If you have questions how this may impact your immigration case, please contact SPS Immigration.
Tuesday, September 29th, 2020, in Immigrant Legal Resource Center v. Wolf, the United States District Court for the Northern District of California stayed in its entirety the implementation of the new USCIS fee rule that was to take effect Friday, October 2, 2020. This means that for the time being, USCIS cannot implement new fees or the accompanying forms. This case will continue to be litigated and the Circuit Court of Appeals could, in the future, disagree which would mean that USCIS could implement the significant increased fee schedule. However, until the Court of Appeals makes a decision, the current USCIS fee structure will stay in place and there will not be new forms.
Please contact SPS Immigration if you have questions on how this might impact your case.
On Friday, September 25, 2020, The United States Department of Labor’s (“DOL”) announced that it will permanently implement the electronic issuance of PERM labor certifications (“E-cert PERMs”). In March 2020, the DOL started temporarily issuing E-cert PERMs via e-mail as opposed to U.S. mail due to the COVID-19 pandemic. DOL initially implemented the E-cert PERMs through June 30, 2020 and then extended the program to September 30, 2020. Through this announcement, the DOL is now permanently issuing E-cert PERMs.
Please contact SPS Immigration if you have questions on how this may impact your case.
On Thursday, September 24th, 2020, the U.S. Department of State (“DOS”) released the October Visa Bulletin. The Filing Chart for Employment-Based Cases show dramatic jumps forward, especially for Indian nationals in the EB-3 category. Later in the day, USCIS announced that it will honor the filing chart as follows:
This is the first time that India EB-3 will be more current than India EB-2, a phenomena commonly seen in the availability for Chinese nationals. Indians with EB-2 I-140s should consider downgrading to EB-3 to take advantage of this October filing window.
This means that any individual who meets the following criteria should be eligible to file an application for permanent resident status (Form I-485) in October 2020: 1) have an approved PERM -based I-140 Petition for Alien Worker through your company (unless you are EB-1, have an approved NIW, or are an individual of exceptional abilities in which case you do not have an underlying PERM); and, 2) have a Priority Date earlier than the corresponding Visa Bulletin date above. It is also critical to remember that beginning October 2, 2020 USCIS will be implementing new filing fees and forms for the green card process.
The DOS provided the additional projections for immigrant visa availability through January 2021 as follows:
EB-1: Remain current for all countries except India and China. Rapid forward movement for India and China.
EB-2: Remain current for all countries except India and China. Rapid forward movement for India and China.
EB-3 Professionals and Skilled Workers: Remain current for all countries except India and China. Rapid forward movement for India and China.
Please contact SPS Immigration if you have questions how this may impact your immigration case.
Sarah is the founder and Principal Attorney at SPS Immigration. Founded in 2005, SPS Immigration is guided by one basic principle – that every client deserves informed, efficient, yet individualized representation. SPS invests in building relationships that enable employers to hire a global workforce, representing a wide variety of clients including health care organizations and professionals, academia, the high-tech industry, start-ups, and artists. Sarah has built SPS Immigration exclusively through referrals from happy clients and is thrilled to be recognized since 2020 by Best Lawyers.
Due to extensive delays in issuing employment authorization documents (“EAD cards”), USCIS announced Wednesday, August 19, 2020, that employees may use Form I-797, Notice of Action, with a Notice date on or after December 1, 2019 through and including August 20, 2020, informing an applicant of approval of an Application for Employment Authorization (Form I-765) as a Form I-9, Employment Eligibility Verification, List C #7 document that establishes employment authorization issued by the Department of Homeland Security, even though the Notice states it is not evidence of employment authorization. Employees may present Form I-797 Notice of Action showing approval of their I-765 application as a list C document for Form I-9 compliance until December 1, 2020. By December 1, 2020, employers must reverify employees who presented this Form I-797 Notice of Action as a List C document. These employees will need to present their employers with new evidence of employment authorization from either List A or List C.
If you have questions on how this impacts your case, please contact SPS Immigration.