The DOL announced yesterday that they have sent a proposed regulation to the OMB for final review and publication. The contents of the regulation have not been made public but, the stated purpose is to restrict H-1b visas to only those highly compensated. Currently, the DOL has 4 wage levels for H-1b petitions and the prevailing wage is based upon the geographical location, the occupation and the level of experience and education needed to perform the job duties. The required wage also takes into consideration any CBA and the wages paid to other US employees in similar positions. Trump has often remarked that he thinks the visas should be restricted to those being paid in excess of $100,000/yr. This approach would have a disproportionate negative impact on certain industries such as healthcare and research. It would also have a greater impact on positions located in rural areas or frankly, anywhere not on the Coast. Another speculation is a change to the way in which the H-1b cap lottery is conducted to start with Level 4 and then proceed downward which would essentially eliminate new grads from consideration. At this point, it is all just speculation. What we do know is that just like the new specialty occupation regulation also at the OMB, this regulation is expected to be released as an Interim Final Rule (IFR) thereby skipping the public comment period and ignoring long-standing rules required under the APA. Publishing the rule as an IFR is asking for a Federal lawsuit to be filed so any rule released is likely to be short-lived but, if your entire purpose is to create campaign fodder, then this may be very effective.
It is being widely reported that wide-sweeping changes to the H-1b visa regulations have now been sent to the Office of Management and Budget (OMB) for final review. It is being reported that the new regulations will be released as an interim final rule with immediate effect. There will be no comment period. The timing could be up to 90 days under normal circumstances but, is being fast tracked by the White House and they are expected to be released by the end of Sept. The exact language has not been released but, several sources are reporting that the new regulations will restrict the placement of an H-1b worker at a 3rd party site unless the 3rd party jointly files the LCA and agrees to comply with all of the LCA requirements/obligations thus creating a co-employment situation. We do not expect any 3rd party worksite to be willing to agree to such a condition. This rule would effectively end the use of H-1b’s by staffing cos. Other industries are not exempt from the proposed changes as additional restrictions have been promised on minimum salary levels and a change to the definition of specialty occupation. Again, the exact language has not been released so details on these changes are not available. Litigation is expected shortly after the rules are released. Blatantly ignoring the Administrative Procedures Act and the Notice and Comment period may indicate that the timing of this rule is not designed to effectuate a long-lasting change but, rather campaign fodder. The Trump Administration has long sought to significantly reduce legal immigration and to specifically restrict the use of the H-1b and L work visas. If you are a U.S. employer and you believe the use of H-1b visas provides you access to much needed talent, we would encourage you to reach out to your various trade associations and encourage them to fight against these proposed rules. We will provide updates as they become available.
Update from NAFSA
The USCIS issued a reminder about the required new forms and new filing fees in effect as of 10-2-2020. The USCIS also made note that premium processing requests are 15 business days not calendar days and that they reserve the right to adjust the premium processing fee amount due to inflation.
The USCIS posted a reminder to F-1 students working on OPT and OPT STEM about monitoring the duration of all periods of unemployment as exceeding the cumulative allowance can leave a student without legal status and impact future change of status filings. One of the most common RFE’s issued in H-1b cap cases is demanding proof of status of students who have engaged in any type of employment whether OPT, STEM OPT, or CPT. The USCIS has created a helpful counter to assist. During this time of COVID as instances of temporary unemployment have become more common, this is a timely reminder.
The USCIS has been threatening to furlough 2/3 of its workforce on Aug 30th if they did not receive additional funding. Is the USCIS really out of $ ? At least one US Senator says they are not. Senator Leahy has written to the USCIS challenging their claims and urging them not to move forward with furloughs. On Sat, the House passed legislation that would fund the USCIS and avoid the furloughs. The Bill was bi-partisan but, whether the Senate passes it and Trump signs it is yet to be seen. Reducing immigration both, legal and otherwise, has been a consistent goal of this Administration and closing down the offices and not processing cases would certainly be effective. We will provide updates as they become available.
On Tues Aug 25th, the USCIS announced that the planned furloughs of 13,000 workers has been averted.
Last week, the Department of State (DOS) released the last visa bulletin of this fiscal year. Typically, at the end of a fiscal year, we see significant retrogression and often some categories become “U” unavailable however, this year virtually all categories remained at last month’s priority date. The USCIS has yet to announce which chart they will recognize but, you can be confident that if you were “current” in Aug, you will remain current in September. We will update the USCIS I-485 information when it is released.
The USCIS has announced that for purposes of filing I-485’s in September, the Final Action Date chart must be utilized.
Lawsuits against the USCIS do work and spur change. As a result of a class action lawsuit filed by AILA member Rob Cohen, which challenged the post-approval delays in EAD issuance, USCIS will now allow people to show the I-797 approval notice as proof of authorization to work:
See this update on I-9 Central
The USCIS stated:
Due to the extraordinary and unprecedented COVID-19 public health emergency, the production of certain Employment Authorization Documents (Form I-766, EAD) is delayed. As a result, 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 pursuant to 8 C.F.R. 274a.2(b)(1)(v)(C)(7), even though the Notice states it is not evidence of employment authorization. Employees may present their 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.
Yesterday, the Department of State (DOS) enumerated 4 exceptions to the Visa Ban. You can find them here.
It is expected that the 3rd exception may have the widest application. It states ” Travel by applicants seeking to resume ongoing employment in the United States in the same position with the same employer and visa classification. Forcing employers to replace employees in this situation may cause financial hardship. Consular officers can refer to Part II, Question 2 of the approved Form I-129 to determine if the applicant is continuing in “previously approved employment without change with the same employer.”
You should note however, that it requires no change from the prior petition and many people have changes in extension petitions. Among the most common are WFH allowances, a change in DOL classification, a change in job title or a promotion, etc. Not all extensions will qualify. For those of you in India, it is being reported that the earliest they are scheduling appointments is Feb so this may be moot.
The DOL has recently announced that the USCIS has agreed to start sharing data with the DOL regarding potential LCA violations that are detected as part of a non-immigrant or immigrant petition filing. For example, if an H-1b worker is transferring her H-1b petition from Co. A to Co. B and the last pay-stubs presented are not current, there may be a failure to pay the required wage violation which the USCIS would refer to the DOL for potential investigation. For employers following the rules and paying all wages required and at the correct level, this is good news as increased enforcement may level the playing field from those cos. that are not in compliance.