The U.S.Department of Homeland Security (“DHS”) announced Thursday, January 7th, 2021, the final rule to amend H-1B regulations governing the process by which U.S. Citizenship and Immigration Services (“USCIS”) selects H-1B registrations for H-1B cap-subject petitions.
Under this new rule, which takes effect 60 days after publication in theFederal Register,USCIS will first select H-1B registrations based on the highest Occupational Employment Statistics prevailing wage level that the offered wage equals or exceeds for the relevant Standard Occupational Classification code and area(s) of intended employment. This means level IV wages will be prioritized above any H-1B Registration that includes the lower wage levels.
It is important to note that the President-elect Biden has already stated that his administration plans to delay the implementation of all regulations that have not taken effect on January 20, 2021, which includes this rule. This standard practice will delay the effective date of this rule by 60 days, which would push its applicability to the next cap period in FY’23. It is also likely that litigation will ensue as this regulation appears to violate Congressional intent in how Congress sought to implement the H-1B Cap Lottery.
Please contact SPS Immigration if you have questions regarding how this may impact your immigration case.
On December 7th, 2020, the U.S. Department of Homeland Security (DHS) announced a Federal Register notice extending Temporary Protected Status (TPS) and the validity of TPS-related documentation for beneficiaries under the TPS designations for El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan.
The notice automatically extends through Oct. 4, 2021, the validity of the following documents for beneficiaries of all six countries:
– Employment Authorization Documents (EADs); and,
– Forms I-797, Notice of Action; and Forms I-94, Arrival/Departure Record.
The notice also sets forth procedures necessary for nationals of these six countries (or aliens having no nationality who last habitually resided in these countries) to apply for EADs if they wish.
This notice ensures continued compliance with the orders issued by the federal district courts in the Ramos v. Nielsen, Bhattarai v. Nielsen, and Saget v. Trump lawsuits that require DHS to maintain the TPS designations for El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan, as well as the TPS and TPS-related documentation for eligible affected beneficiaries.
The TPS designations for El Salvador, Nicaragua, and Sudan will remain in effect, as required by the Ramos district court order, so long as the preliminary injunction remains in effect. Although a panel of the U.S. Court of Appeals for the Ninth Circuit vacated the injunction on Sept. 14, 2020, no directive has been issued to the district court, thus the injunction remains in effect.
The TPS designation for Haiti will remain in effect, as required by the preliminary injunction orders in both Ramos and Saget, so long as either of those preliminary injunctions remains in effect.
The TPS designations for Honduras and Nepal will remain in effect so long as the Bhattarai order staying proceedings and approving the parties’ stipulated agreements continues in effect.
Please reach out to SPS Immigration if you have questions on how this may impact your immigration case.
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.