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Volume XI, Number 267

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US Immigration Update: Must Be the Season of the Witch

It’s been a frenetic October and we’re still in the first week. Here is a quick summary of significant developments in U.S. Immigration just within the past few days.

Federal District Court Issues Preliminary Injunction Halting Implementation of Nonimmigrant Visa Ban

On October 1, 2020 Judge Jeffrey S. White of the District Court for the Northern District of California issued an order enjoining the Department of State (DOS) and Department of Homeland Security (DHS) from enforcing, on a limited basis, the June 22, 2020 Presidential Proclamation 10052, that suspended the entry of H-1B, L-1, H-2B and certain J-1 nonimmigrants (along with spouses and children).

In National Association of Manufacturers et al., v. DHS, et al., Judge White limited the scope of the  injunction to the name plaintiffs, and their associated member organizations – the National Association of Manufacturers, the U.S. Chamber of Commerce, the National Retail FederationTechNet, and Intrax, Inc. Given the challenges faced by DOS and DHS to comply with an injunction limited to specific employers, the agencies may choose to comply with the injunction on a broader basis as indicated in this recent announcement relating to emergency appointments for appointments at U.S. Consulates.

It should be noted that the Presidential Proclamations relating suspending the entry of certain immigrants (Proclamation 10014) and the Novel Coronavirus travel restrictions for certain individuals traveling from China, Iran, the European Schengen Area, the United Kingdom and Ireland, and Brazil remain in effect.

Federal District Court Also Blocks Enforcement of DHS Fee Rule

Judge White has been busy this week because he also issued an injunction, in Immigrant Legal Resource Center, et al., v. Chad F. Wolf, et al. (N.D. Cal., 3:20-cv-05883), enjoining the DHS from enforcing its new fee rule, which was set to take effect on October 2, 2020.  As we explained in our previous blog post, the rule would have significantly increased the filing fees for various immigration petitions and applications, extended the premium processing adjudication timeline to almost three weeks from 15 calendar days,  and revamped the petition forms for employer-sponsored H-1B, H-2A/B, L-1, O, and TN nonimmigrant visa petitions.

For now, the DHS, through the U.S. Citizenship and Immigration Services (USCIS), will continue to accept filings using the current editions of the forms and current filing fees. However, the government is expected to appeal decision.

DOS Announces Surplus of Unused Immigrant Visas; USCIS Opens Floodgates Permitting Additional Applications for Green Cards

Due to substantial slowdowns in family-based immigrant visa processing throughout fiscal year (FY) 2020 caused by the COVID outbreak, consulate closures, reduced government operations and immigrant visa bans, the DOS issued its October 2020 Visa Bulletin announcing a surplus of employment-based immigrant visas, totaling 261,500, for FY 2021 which commenced on October 1, 2020. In turn, the USCIS announced it will permit would-be immigrants to file their Adjustment of Status applications based on the “Dates for Filing” chart in the October 2020 Visa Bulletin. As a result, many individuals (estimated in the 100s of thousands) that have been waiting years to complete their green card process are now eligible to submit the last stage of the process.

President Signs Legislation Expanding Premium Processing

On September 30, 2020, the President signed H.R. 8337 – the Continuing Appropriations Act, 2021 and Other Extensions Act, which funds the government through December 11, 2020. The law includes language from the Emergency Stopgap USCIS Stabilization Act (H.R. 8089),which seeks to address USCIS budget shortfalls by giving DHS immediate authority to increase premium processing fees and expand premium processing services. H.R. 8837 amends the Immigration and Nationality Act as follows:

  • Increases the current premium processing fee of $1440 to $2500, except for H-2B (temporary workers) and R (religious workers) petitions, both to be set at $1500.

  • Expands premium processing services to the following categories:

    • employment-based nonimmigrant petitions not already subject to premium processing including associated applications for dependent family members;

    • certain employment-based green card petitions (including EB-1 multinational executives/managers and EB-2 national interest waivers) not already subject to premium processing;

    • applications to change or extend nonimmigrant status;

    • applications for employment authorization (EADs); and

    • other immigration benefit requests as USCIS deems appropriate.

  • Permits USCIS to raise or set premium processing fees for certain categories without rulemaking provided certain benchmarks (including processing times) are met.

  • Requires USCIS to develop a 5-year plan to implement electronic filing procedures for all benefit requests, accept electronic payments, correspond with benefit requestors electronically, and reduce processing timeframes for all immigration and naturalization benefit requests.

USCIS is not expected to implement the above changes for several weeks.

New Rules Fundamentally Alter the H-1B Visa Program

On a scarier note, the DHS/USCIS and Department of Labor (DOL) are each publishing rules making drastic changes to the H-1B specialty occupation visa category. The USCIS rule is entitled “Strengthening the H-1B Nonimmigrant Visa Classification Program” (H-1B Rule) and the DOL rule, “Restructuring of H-1B/H-1B1/E-3 and PERM Wage Levels” (Wage Rule). These rules will be published in the Federal Register on October 8th. The H-1B rule will take effect 60 days after publication while the Wage Rule will be effective immediately. The following is a broad overview of the two rules, which are likely to be challenged in federal court:

USCIS H-1B Rule 

  • Revises the definition of an H-1B specialty occupation to clarify that there must be a direct relationship between the required degree field(s) and the H-1B role. However, the comments to the rule clarify that this new requirement should not be misconstrued as mandating a singular field of study.

  • Emphasizes that a general degree requirement (such as business administration or liberal arts) without further specialization, would not qualify as specialty occupation.

  • Changes the definitions of H-1B employment and the employer-employee relationship in order to restrict offsite (third-party) placement of H-1B workers. Third-party worksite is defined as a worksite, other than the H-1B worker’s residence in the United States that is not owned or leased by the petitioner/employer.

  • Limits the validity period for approval of H-1B petitions including third-party placement to 1 year instead of 3 years.

  • Requires petitioners to demonstrate “non-speculative employment” or actual work available for the H-1B beneficiary at the time of filing.

  • Expands site visits conducted by the USCIS Fraud Detection and National Security (FDNS) division to include H-1B adjudications. Traditionally, the DOL Wage and Hour Division has been the primary agency responsible for policing H-1B compliance but now USCIS/FDNS is getting into the game. The new regulations emphasize that inspections may include, but are not limited to, unannounced on-site visits of the petitioning organization’s facilities, interviews with its officials, review of its records related to compliance with immigration laws and regulations, and interviews with “any other individuals or review of any other records that USCIS may lawfully obtain and that it considers pertinent to verify facts related to the adjudication of the H-1B petition.” If a petitioner or a third-party fails or refuses to cooperate during a FDNS site visit, USCIS may deny a pending petition or revoke an approved petition.

DOL Wage Rule

  • Changes the computation of prevailing wage levels using the DOL’s Occupational Employment Statistics (OES) data from the Bureau of Labor Statistics (BLS), resulting in higher prevailing wage requirements for all occupations in related H-1B, H-1B1 (Chile/Singapore) and E-3 (Australia) visa petitions and applications that require a Labor Condition Application (LCA) issued by the DOL.

  • The changes will also apply to prevailing wage determinations (PWD) associated with the DOL’s PERM labor certification program. Through the PERM program, DOL processes labor certification applications for employers seeking to sponsor foreign national employees for permanent residency (i.e., green cards) under the EB-2 and EB-3 immigrant visa preference categories.

  • As stated above, this rule takes effect upon publication on October 8, 2020. Per recently posted Implementation Frequently Asked Questions, DOL clarifies these new wage requirements will not affect filed or approved LCAs or PERM applications. However, all PWDs pending on the effective date will be issued utilizing the new wage requirements.

Background: Employers seeking to sponsor foreign nationals for nonimmigrant H-1B, H-1B1, or E-3 visas, must attest that they will pay such nonimmigrant workers the higher of the prevailing wage or the actual wage paid to other employees with similar experience and qualifications. Similarly, employers seeking to sponsor foreign national workers for immigrant visas based on the EB-2 or EB-3 classification, must seek to test the U.S. labor market and recruit U.S. workers for the position using the PWD issued by the DOL, and, if no willing, available, and qualified workers are found, must pay the foreign national worker no less than the prevailing wage.

Looks like these H-1B changes are neither trick nor treat.  “On no, must be the season of the witch.”

© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume X, Number 281
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About this Author

Gregory Wald, Immigration Attorney, Squire Patton Boggs Law Firm
Shareholder

Gregory Wald’s experience includes representing multinational and Fortune 500 companies and individual clients in all aspects of immigration law including nonimmigrant visas, and immigrant matters regarding multinational executives and managers, individuals of extraordinary ability and professionals.

He has appeared before the US Department of Homeland Security (DHS), US Department of Labor, US Department of Justice Executive Office for Immigration Review and various federal courts.

415 393 9828
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