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.
Category: Visas – H-1b, L-1, E, O, TN
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 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.
For all of our clients that file for your own EAD cards, please take note that the USCIS will be requiring a new form as of Aug 25th. More info. and a copy of the form can be found here.
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.
One of our partners, Douglas Halpert and a senior associate, Christy Turovisky recently published a helpful article about issues that business travelers may encounter at the border. Check it out here. If you advise business travelers at your company, this will be worth the read.
The USCIS has accepted the ruling from a U.S. Federal Court and has suspended the application of the new Public Charge rule issued in Jan of 2020. The public charge rules based upon prior statute and regulation remain in effect. As a practical matter, this means that certain questions on the I-129 and I-539 will no longer be relevant and need not be answered. It also means that the I-944 need not be included with the I-485. The USCIS has specifically stated the following about forms received: “In the interim, USCIS will not reject any Form I-485 on the basis of the inclusion or exclusion of Form I-944, nor Forms I-129 and I-539 based on whether Part 6, or Part 5, respectively, has been completed or left blank.”
Recently, the Department of State (DOS) announced that visa services at U.S. Consular Posts will resume operations as local conditions warrant. This is an ever changing situation and we encourage you to contact your HNM attorney before seeking any service at a US Consulate.
Many workers and dependents are currently stranded overseas due to the recent Presidential Proclamation suspending visa issuance until Jan 2021. Many of these individuals were already living and working in the U.S. but, circumstances had them overseas at the time the COVID-19 pandemic hit and they became stranded due to health concerns, travel restrictions and now the visa ban. With most U.S. Consulates remaining closed, the visa ban has little effect at present. However, as Consulates re-open, the ban will force families to remain separated and keep people from jobs for which they were already approved. Here is a recent article from Bloomberg discussing this issue.
If you or a family member are personally stranded and may be willing to be a participant in a Federal lawsuit against the Trump Administration and this policy, a friend of ours, Greg Siskind is collecting information from potential plaintiffs and you can complete the form here.