In a victory for legal immigration and particularly staffing employers, the DOL announced today that it was withdrawing its policy memo issued last Fri., which imposed additional requirements on staffing employers and their customers.
On this day, when the legal immigration world should be celebrating an incoming President that, at the very least, will not be anti legal immigration, we are still reading and trying to understand the implications of the new rules announced in the past week. Here is a link to a great summary from our friend Stuart Anderson. Many of the new rules target healthcare and IT occupations and employers. We will provide updates as actions are taken by President Biden.
Yesterday, the DOL issued a new memo explaining that it will start requiring all secondary employers to file LCA’s for contractors placed at their location. The DOL cites to a new USCIS regulation which is expected to be issued on Tues the 19th which changes the definition of an employer. The DOL specifically states that this memo “better comports with the goals of the Executive Branch policy” The new memo will take effect on July 14, 2021. The Wage and Hour Office also issued a Field Assistance Bulletin implementing the above memo. It is expected that the new Biden Administration will examine this new policy.
And you thought he was done. Not even close. When your goal is to destroy legal immigration and make it out of reach for everyone but, the richest, you keep fighting to the end and that is exactly what the Trump Administration is doing. Today, the DOL released in Final Rule format the rule they had released in interim final format in Oct. The new rule will go into effect in 60 days but, the new wages will not be released until July 2021 and there will be a phase-in period. If you recall, that rule was struck down by multiple Federal Courts due to a complete failure to follow the correct legal procedures and the substance of the rule was criticized relative to its faulty assumptions, poor methodology, and math. The DOL “considered” the public comments, in part pointing out the absurdity of having some entry level wages set at $208,000/year, reviewed the decisions from the Federal judges that ruled against them and then dismissed it all and re-issued a very similar rule. To their credit, they did correct some of their math errors. The new methodology sets the wage levels at the 35th,53rd,72nd, and 90th percentiles. A number of the Plaintiffs who pursued federal lawsuits over the interim final rule have already announced that they will be suing again. There is also an expectation that the Biden Administration will take a look at all of the regulations rushed through by the Trump Team so this may all be moot.
The USCIS has issued an update letting its stakeholders know that we can expect delays in the issuance of receipt notices. (A more obvious statement could not be made as we are waiting on receipts from filings made 3+ months ago) Relative to I-485 and I-765 receipts, the USCIS stated that we can expect “significant delays”. The communication did not give any estimate as to when they will once again be able to provide receipts in a timely manner but, did indicate they were working extra hours to handle all of the filings. Our office and the immigration bar at large has experienced not only delays by the lockbox but, also a significant number of inaccurate rejections. The lockbox facilities are not fully staffed by trained USCIS employees which may be part of the problem.
Today, the USCIS published a new rule in the Federal Register changing the way that H-1b petitions are chosen in the lottery. The lottery has always been a random selection process however, this new regulation would change the process to a wage based system in which persons being paid at wage level 4 would have a higher chance of selection then someone paid at a level 1 or level 2 wage level. It is believed that the new regulation would all but, eliminate any chance at a person being selected if they are offered a level 1 wage. Level 1 wages are typically offered to new grads (hence the designation Level 1) The new regulation makes it easier for employers based overseas to obtain visas for their key employees while making it harder for international graduates from U.S. schools to obtain a visa. Large outsourcing employers are cheering this change as they will be able to easily take advantage of the new rule whereas smaller employers and those who hire new grads, often in the healthcare industry, are decrying this policy change. Whether or not this policy survives a legal challenge or changes by the Biden Administration remains to be seen.
On Dec 31, 2020, a defeated President Trump fired another salvo at legal immigration by extending the visa ban to March 31,2020. A copy of his proclamation can be found here. The ban prevents the issuance of new H-1b and L-1 visas (among others) and is an extension of the ban issued in June of 2020. U.S. Consulates on Mon. cancelled existing appointments citing the renewed ban. The original ban exempted healthcare workers however, we have had visa appointments for healthcare workers cancelled this week. We are hopeful that this was a Consular error. We are optimistic that the Biden Administration will act quickly after taking office to reverse this ban. For more on this issue, including a nice analysis on the labor data that should be relevant, check out this Forbes article.
A friend of our firm’s and attorney extraordinaire, Tahmina Watson, has written a great book, Legal Heroes in the Trump Era and she is hosting a launch party on Jan 9th. Registration is free and you can sign up here. We would love for you to support our friend, buy her book for yourself or buy multiple copies and pass them along to friends. You will be inspired by the stories !
The USCIS recently announced that it was extending the 60 additional days to respond to RFE’s and other filings to include those issued prior to Jan 31, 2021. You can read the notice and all of the filings covered here. The USCIS has been extremely accommodating to filers during this pandemic. Kudos to them.