Category: Alerts

U.S. Citizenship and Immigration Services (USCIS) today published a final rule modifying the annual H-1B cap selection process to favor high-wage earners.  The rule is set to take effect March 9, 2021, in time for the Fiscal Year (FY) 2022 H-1B cap registration and selection process.  However, implementation may be delayed or deferred, due to the impending change in presidential administrations and potential litigation.

Highlights of the Rule

• The rule replaces the current H-1B cap random selection process with a process that prioritizes selection of  H-1B registrations (or filed petitions, if the registration process is suspended) for individuals earning the highest salaries in their area of employment based on Department of Labor (DOL)  Occupational Employment Statistics (OES) wage levels.
• DOL OES wage  surveys have  four wage levels, ranging from entry level (Level I)  to most senior (Level IV).   USCIS intends to rank registrations on the basis of the highest OES wage level that the offered wage equals or exceeds and select registrations in descending order beginning with registrations for individuals that will be paid at least an OES Level IV wage for the designated  occupation in the area of intended employment.
• If USCIS receives a number of registrations at the highest ranked wage level in excess of the annual H-1B cap, a random lottery will be conducted from the registrations at that wage level only.
• If a registration leverages a private wage survey (instead of the DOL OES wage survey) and the private survey wage (regardless of level) is less than a DOL OES Level I wage, USCIS will categorize the registration as a Level I, the lowest priority for selection.
• If a beneficiary will work at multiple worksites in different geographic areas with varying wage levels, USCIS will rank the registration based on the lowest corresponding OES wage level for the occupation.
• The ranked wage level selection process will be implemented for both the H-1B regular cap and H-1B advanced degree cap selection process, in the order established by the H-1B rule implemented in 2019.
• The rule authorizes USCIS to deny any petition subsequently filed for a selected beneficiary if USCIS determines that a new or amended petition was filed to reduce the wage level of the initial petition filed pursuant to the registration.

In general, the rule will significantly and adversely impact employers wishing to sponsor H-1B petitions for entry level professional positions with corresponding entry level wages, including petitions for recent STEM and non-STEM graduates from U.S. universities, as registrations for these positions are less likely to be selected given their low ranking and the number of registrations each year.  The rule will also adversely impact small businesses that may not be able to offer higher wages. Implementation of the rule will inevitably result in a loss of valuable foreign talent, including scientists, health care professionals, IT workers  and others, as foreign student graduates may be forced to depart the U.S. with this key immigration option eliminated.    Foreign students and the H-1B program have long been targets of the Trump administration, though many of these initiatives  have been struck down by federal courts.

What’s Next?

USCIS is currently modifying its H-1B online registration tool to collect the wage and occupation classification data needed to rank registrations. If the online registration tool is not configured in time for the FY 2022 registration cycle (commencing in March 2021), USCIS could suspend the online cap registration process, and instead require employers to submit fully completed H-1B petitions for selection under the H-1B cap, as was the practice in the years prior to 2020.

However, implementation of the rule by March 2021 is not assured.  The rule is vulnerable to legal challenges in  federal court on both procedural and substantive grounds. Additionally, the incoming Biden administration is expected to review all regulations advanced in the waning days of the Trump administration and place any regulation not yet implemented  on hold.  This may sufficiently delay implementation of this rule so that the FY 2022 cap selection process is not impacted.  Longer term, it is not clear whether the Biden Administration will ultimately  oppose this rule. On the one hand, the Biden campaign’s immigration platform does reference support for general reforms establishing a wage-based visa allocation process. At the same time, the platform recognizes the value of retaining foreign talent, in calling to  expand the number of visas for high-skilled workers and exempt recent graduates of U.S. Ph.D. programs in STEM fields from visa caps.

Gibney is closely monitoring this matter and will provide updates as they develop.

What Should Employers Do Now?

Employers should work with immigration counsel now to identify employees  requiring H-1B sponsorship under the FY 2022 H-1B cap, including gathering data related to position duties, requirements, wages and area(s) of intended employment, for the purpose of assessing eligibility for H-1B classification and preparing to submit registrations.

For additional information, please contact your designated Gibney representative.

Donald Trump extended two directives restricting the admission of certain immigrants  and nonimmigrants to the U.S.  Specifically,  Presidential Proclamation (PP) 10014  restricting the admission of first-time immigrants  and PP 10052 restricting  the admission certain H, J and L temporary workers,  were set to expire on December 31, 2020 but have now been extended to March 31, 2021.  There are exemptions to both of these “visa category”  bans, and both are also the subject of legal challenges.  Despite the extension of the bans until March 31, 2021, President-elect Joseph Biden is expected to review all Trump Administration immigration actions upon taking office on January 20, 2021, and may terminate the bans at any time.

BACKGROUND

The immigrant visa ban/PP 10014 was initially implemented in April 2020 and suspends the entry of select classes of immigrants currently outside the U.S. seeking to enter the U.S. as permanent residents with a new immigrant visa.  Additional information about who is covered and who is exempted from the immigrant visa ban is available here.

The nonimmigrant visa ban/PP 10052 was initially implemented in June 2020 and suspends the admission of certain H, J and L temporary workers. Subsequent to implementation, both the U.S. Department of State and U.S. Customs and Border Protection clarified the scope of the nonimmigrant visa ban, and the Department of State outlined National Interest Exemptions to both bans.  Additionally, in October 2020, a federal district court blocked enforcement of  the nonimmigrant visa ban, finding that the directive exceeded the President’s authority and unlawfully invalidated significant portions of the Immigration and Nationality Act.  The impact of the ruling is currently limited to the plaintiffs who filed suit and the members of their respective organizations.  Plaintiffs include the National Association of Manufacturers, the Chamber of Commerce of the United States, the National Retail Federation, and others.

Notably, the coronavirus-related  “regional travel bans” restricting the admission of travelers from the European Schengen Area, the United Kingdom and Ireland, China, Iran, and Brazil will remain in place until affirmatively terminated by the President. The land border restrictions at the U.S., Canadian and Mexican borders will remain in place until at least January 21, 2021.

More information addressing the immigration impact of COVID-19 and the government’s associated travel restrictions and policies is available on Gibney’s  Immigration Updates and FAQs.

UPDATE DECEMBER 31, 2020–  The U.S. Department of Homeland Security again extended measures to restrict non-essential travel to the U.S. from Canada and Mexico through land ports of entry and ferry terminals. The travel restrictions will remain in place through January 21, 2020 and will likely be extended further. The United States previously reached mutual agreements with Canada and Mexico to limit non-essential travel at land ports of entry and ferry terminals to reduce the spread of COVID-19. The restrictions do not apply to air travel.  Information concerning the scope of the travel restrictions and exemptions is available here.

The Department of State released the  January 2021 Visa Bulletin. In a departure from the last three months, USCIS has indicated that employment-based adjustment of status applicants must follow the Final Action Dates  chart.    Chinese and Indian nationals face more severe retrogression under Final Action Dates than under the Dates for Filing charts used from October through December.

EMPLOYMENT-BASED (EB) PRIORITY DATE SUMMARY  FOR JANUARY FINAL ACTION DATES

EB-1, First Preference Category

• Worldwide (including El Salvador, Guatemala, Honduras, Mexico, Philippines, and Vietnam) is current in January.
• China and India: The cut-off date is September 1, 2019.

EB-2, Second Preference Category

• Worldwide remains current in January.
• China: The cut-off date is June 1, 2016.
• India:  The cut-off date is October 8, 2009.

EB-3, Third Preference Category

• Worldwide, including  EB-3 Worldwide Other Workers, remains current in January.
• EB-3 China’s cut-off date is December 15, 2017 and the cut-off date for EB-3 China Other Workers is March 1, 2009.
• EB-3 India and EB-3 India Other Workers’ cut-off date is March 22, 2010.

Individuals with a priority date that is either “current” or before the published cut-off date may file an adjustment of status application based on the dates outlined above.

WHAT SHOULD EMPLOYERS DO NEXT?  

Employers should work with immigration counsel to identify foreign nationals who are eligible to file adjustment of status applications in January pursuant to the Final Action Dates chart. Additionally, it will be particularly important to file adjustment of status applications in December for Chinese and Indian nationals who qualify to file under the December 2020 Visa Bulletin Dates for Filing Chart and who will lose eligibility to file under the January 2021 Final Action Dates.

For additional information, please contact your designated Gibney representative or email info@gibney.com.

A federal judge in California struck down two Trump administration rules that substantially altered the H-1B visa program for temporary professional workers and  increased wage obligations for businesses employing certain temporary workers.

The Department of Labor (DOL) rule  took effect October 8, 2020, and imposed significantly  higher wage requirements on businesses that employ H-1B, H-1B1 and E-3 workers, and businesses that file PERM labor certifications for foreign workers as part of permanent resident sponsorship.

The Department of Homeland Security (DHS) rule narrowed the definition of a specialty occupation to limit who qualifies for the visa, imposed restrictions on employers that place H-1B workers at end-client sites, and expanded USCIS site visit authority.  The  DHS rule was set to take effect on December 7, 2020.  Additional information about the rules is available here.|

In striking down the rules, the court found that the Trump administration violated the Administrative Procedures Act (APA) by implementing the rules without following the APA’s public notice and comment procedures.  The court rejected the administration’s argument that the impact of  COVID-19  on domestic unemployment justified  fast-tracking  the rules, observing that the administration had been considering the rules since 2017.

What’s Next?

The court’s summary judgment order invalidating the rules  is effective immediately.  However, the administration may seek to expedite an appeal of the decision, leaving employers in some suspense as to the ultimate outcome.

It is not yet known how the ruling will impact prevailing wage determinations issued by DOL while its rule was in effect, nor whether DOL will immediately revert to the prevailing wage data utilized prior to issuance of the rule, now that the rule is invalidated.  Gibney is closely monitoring the matter and working with employers to strategize cases in light of the decision.

The case is Chamber of Commerce of the United State of America et al v. United States Department of Homeland Security et al, case number 4:20-cv-07331, in the U.S. District Court for the Northern District of California.

For additional information, please contact your designated Gibney representative or email info@gibney.com.

 

UPDATE –  The U.S. Department of Homeland Security further extended measures to restrict non-essential travel to the U.S. from Canada and Mexico through land ports of entry and ferry terminals. The travel restrictions will remain in place through December 21, 2020 and may extended further. The United States previously reached mutual agreements with Canada and Mexico to limit non-essential travel at land ports of entry and ferry terminals to reduce the spread of COVID-19. The restrictions do not apply to air travel.  Information concerning the scope of the travel restrictions and exemptions is available here.

For additional information, please contact your Gibney representative or email info@gibney.com.

The U.S. Department of Homeland Security (DHS) has extended two policies providing employers and employees with flexibility in meeting certain Form I-9 Employment Verification requirements.

DHS EXTENDS VALIDITY OF FORM I-797 FOR I-9 VERIFICATION DUE TO EAD PROCESSING DELAYS

DHS previously announced temporary relaxation of Form I-9 verification requirements pertaining to individuals utilizing an Employment Authorization Document (EAD) for employment, allowing  employees to use a Form I-797, Notice of Action, in lieu of the EAD, as a Form I-9, List C document establishing employment eligibility.  DHS has extended the relaxed Form I-9/EAD verification requirements through  February 1, 2021. To utilize the Form I-797 in lieu of the EAD, the Notice must indicate approval of an Application for Employment Authorization, and must have a Notice date from December  1, 2019 and through and including August 20, 2020.  Additional information is available at Gibney’s insights.

DHS EXTENDS FORM I-9 COMPlIANCE FLEXIBILITY DUE TO COVID-19

In March 2020, DHS implemented a policy relaxing the requirement to review Form I-9 identity and employment verification documents for remote workers “in-person” during the pandemic. DHS has extended Form I-9 compliance flexibility for qualifying  employers until December 31, 2020.

Who does the Policy Affect?

Form I-9 in-person inspection rules are relaxed for any U.S. employer who has converted to a total remote working schedule for all employees due to COVID-19. The policy  states that “if there are employees physically present at a work location, no exceptions are being implemented at this time for in-person verification of identity and employment eligibility documentation for Form I-9.“ However, according to the policy, DHS will consider exceptions if newly-hired employees are subject to COVID-19 quarantine or lockdown protocols.

How Should Qualifying Employers Proceed?

Remote employees must complete Section 1 of Form I-9 and choose identity and work-authorization documents from List A/B/C. Within three (3) business days of hire, remote employers must inspect the employee’s documents over video link, email, fax, etc., and complete Section 2 of Form I-9. Employers must retain copies of any documents inspected remotely. Employers should enter “COVID-19” as the reason for the physical inspection delay in the Section 2 Additional Information field.

After normal operations resume and employees return to the office, employers will have three (3) business days to physically examine the same documents previously reviewed electronically/remotely. Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 Additional Information field on the Form I-9, or to Section 3, as appropriate.

Qualifying employers who avail themselves of this option must be prepared to provide DHS with written documentation of their remote onboarding and telework policy.

DHS reminds employers that, as a general matter for remote workers (even before the pandemic), a company may designate anyone to serve as an “authorized representative” of the company for completion of Section 2, including the in-person inspection of documents. Rather than relying on the temporary pandemic policy for a remote workforce, an employer may consider utilizing an authorized representative to inspect the employee’s documents in-person with three (3) days of hire, in accordance with pre-existing rules permitting the use of authorized representatives to perform this function. The employer is liable for any violations in connection with the form or the verification process, including any violations in connection with the form or the verification process.

The relaxed rules for qualifying employers with a total remote workforce will remain in place until December 31, 2020, and could be extended further.

Gibney is  closely monitoring changes to employment eligibility verification policy and procedures and will provide updates as they become available. If you have questions regarding this alert or the Form I-9 process generally, please contact your Gibney representative or email info@gibney.com.