H-1B REGISTRATION WINDOW

Beginning March 2, 2021, H-1B Electronic Registration for cap-subject petitions will take place. While this marks the second year that USCIS has utilized electronic registration, the process remains much the same as last year. 

Employers that did not participate in last year’s electronic registration process will need to first create an H-1B Registrant account on MyUSCIS.  Employers that did participate last year will be able to utilize their existing account.  

The registration window will open at 12:00pm Eastern Time on March 9, 2021 and end at 12:00pm Eastern Time on March 25, 2021. During this window, all potential beneficiaries must be registered by their employer to be considered for H-1B selection in the cap.  

USCIS intends to inform employers by March 31, 2021 which beneficiaries were selected and full H-1B petitions may be filed no earlier than April 1, 2021. While the registration process only requires minimal information about each beneficiary, the beneficiary must meet all eligibility requirements at the time of filing the full H-1B petition. 

Please contact MU Law should you have any questions or require any assistance in filing H-1B cap-subject registrations.

PRESIDENT BIDEN RESCINDS PRESIDENTIAL PROCLAMATION PROHIBITING ENTRY OF IMMIGRANTS DUE TO COVID-19 PANDEMIC

On February 24, 2021, President Biden rescinded Presidential Proclamation 10014. PP 10014 prohibited the issuance of most immigrant visas (green cards) at US Embassies and Consulates due to possible economic harm to the US during the COVID-19 Pandemic.

All consular processed green card cases put on hold due to PP 10014 will now resume processing. However, many US embassies are still operating on reduced staff, due to the COVID-19 pandemic. Therefore, we anticipate that there will continue to be delays in obtaining green card interviews at Embassies and Consulates.

Although PP 10014 has been rescinded, Presidential Proclamation 10052 (PP 10052) suspending the entry of nonimmigrant workers due to the COVID-19 Pandemic remains in place. Specifically, PP 10052 applies to applicants applying for H-1B, H-2B, L-1, J-1, H-4, L-2, and J-2 visas for entry to the US.

In addition, the Department of State (DOS) updated its guidance related to National Interest Exemptions for individuals subject to PP 10052. The eligibility requirements have not changed, but the DOS has provided further details of which nonimmigrant visa applicants can qualify for National Interest Exemptions. PP 10052 is currently set to expire on March 31, 2021.

MARCH 2021 VISA BULLETIN: ANALYSIS AND PREDICTIONS

The Department of State has just issued the March 2020 Visa Bulletin. This is the sixth Visa Bulletin of Fiscal Year 2021. This blog post analyzes this month's Visa Bulletin.

Visa Bulletin

Table A: Final Action Dates -- Applications with these dates may be approved for their Green Card (Permanent Residency card) or Immigrant Visa appointment.

Employment- based	All Other	CHINA	INDIA	PHILIPPINES
1st	C	01AUG20	01AUG20	C
2nd	C	15JUL16	15JAN10	C
3rd	C	08FEB18	01JUL10	C

 

Table B: Dates of Filing

The USCIS will be using the Table A: Final Action Dates chart for I-485 employment-based filings. A beneficiary must be current on the above Table A chart in order to file their I-485, Adjustment of Status applications.

MU Law Analysis

Both the Philippines and Worldwide (All Other) EB-3 continue to be current. Our opinion remains that these categories will stay current for the foreseeable future.

India EB-1 moved ahead 7 more months, which is about a year since December. India EB-2 and EB-3 each showed more progress than usual, but the progress is still underwhelming.  These slow progressions, along with the large number of India EB-2 and EB-3 filings in October, November, and December, probably means that we should only expect 1-4 week movements in India EB-2 or EB-3 for at least the rest of 2021.

China EB-2 and EB-3 again both moved forward by a few weeks, a trend that should continue. China EB-1 again showed more progress than expected moving ahead seven months.  This may be because of declining rates of visa issuance out of the American posts in China.

  

REMINDER: H-1B CAP: LOTTERY AND REGISTRATION UPDATES

MU Law will be hosting a free webinar for our clients and friends on Tuesday, February 16, 2021 at 2PM Eastern (1PM Central). Interested clients and friends can register for our webinar by clicking on the link below.

REGISTER HERE

Join us for this FREE webinar to learn more about:

-      The H-1B CAP timeline for registration submissions

-      The H-1B Wage-Based Lottery Selection Rule now *canceled*

-      Recap of DOL Wage Rule and promo Alternative Wage Surveys

-      The H-1B Rule Requiring End-Clients to file LCAs or H-1Bs now *canceled*

 

PLEASE JOIN US! 

H-1B CAP: LOTTERY AND REGISTRATION UPDATES

MU Law will be hosting a free webinar for our clients and friends on Tuesday, February 16, 2021 at 2PM Eastern (1PM Central). Interested clients and friends can register for our webinar by clicking on the link below.

REGISTER HERE

Join us for this FREE webinar to learn more about:

-      The H-1B CAP timeline for registration submissions

-      The H-1B Wage-Based Lottery Selection Rule now *canceled*

-      Recap of DOL Wage Rule and promo Alternative Wage Surveys

-      The H-1B Rule Requiring End-Clients to file LCAs or H-1Bs now *canceled*

 

PLEASE JOIN US! 

USCIS Delays Wage-Based H-1B Lottery until 2022

In January 2021, the USCIS issued a final rule that would replace the random H-1B cap lottery with a wage-based H-1B selection process. This January 2021 rule was set to go into effect on March 9, 2021 and would apply to the upcoming H-1B cap season (filed in April 2021 for Fiscal Year 2022). However, the USCIS has delayed implementing this rule until December 31, 2021. This means that for the H-1B cap lottery in April 2021, even if there are multiple lottery drawings, none of the drawings will be done under the wage-based selection process.  All lottery drawings in 2021 will be random.  

The new wage-based selection process would select the H-1Bs filed at the highest OES prevailing wage level, starting with Level IV, for the job classification and location of employment.  If there are more than 85,000 Level IV H-1B petitions filed, then the USCIS would hold a lottery just for the Level IV wage petitions.  If there are fewer than 85,000 level IV wage petitions, then the USCIS would run a lottery of the Level III wage petitions for the remaining H-1B spots available. The wage-based selection process then continues for Level II and I, until 85,000 petitions have been selected. 

The USCIS announced February 4, 2021 that the USCIS will delay implementing the wage-based selection process because the USCIS does not have adequate time to develop and test the new wage-based selection process for the 2021 H-1B lottery.  At present, the USCIS plans to have the rule implemented for the H-1B cap season in April 2022 (Fiscal Year 2023).

PRESIDENT BIDEN PROPOSED US CITIZENSHIP ACT OF 2021

 President Biden has announced the US Citizenship Act of 2021, an immigration plan that could impact many immigration laws.  At this time, President Biden’s plan is not law, but only a proposal.  Although President Biden has promised many changes to immigration laws, these changes will take time to be implemented. 

Once President Biden’s plan is introduced into Congress, either in the House of Representatives or the Senate, as a bill, the bill must successfully pass three steps before it becomes a law:

1. Pass the House of Representatives and the Senate. The bill must be voted for by a majority of the members of the House of Representatives (the House) and the Senate.

2.Conference Committee. If the House and the Senate pass different versions of the bill, the bill must be amended so that there is only one version of the bill. Once the bill has been amended, both the House and Senate must again pass the bill.

3. Be signed by the President. Once a bill is signed by the President, the bill  becomes a law.

As of today, the US Citizenship Act of 2021 introduced by President Biden is still only a plan and must be introduced to Congress as a bill and successfully pass these three steps before it becomes a law. 

FEBRUARY 2021 VISA BULLETIN: ANALYSIS AND PREDICTIONS

The Department of State has just issued the February 2020 Visa Bulletin. This is the fifth Visa Bulletin of Fiscal Year 2021. This blog post analyzes this month's Visa Bulletin.

Visa Bulletin

Table A: Final Action Dates -- Applications with these dates may be approved for their Green Card (Permanent Residency card) or Immigrant Visa appointment.

 

Employment- based	All Other	CHINA	INDIA	PHILIPPINES
1st	C	01JAN20	01JAN20	C
2nd	C	15JUN16	12OCT09	C
3rd	C	01JAN18	01APR10	C

 

Table B: Dates of Filing

The USCIS will be using the Table A: Final Action Dates chart for I-485 employment-based filings. A beneficiary must be current on the above Table A chart in order to file their I-485, Adjustment of Status applications.

MU Law Analysis

Both the Philippines and Worldwide (All Other) EB-3 continue to be current.  Our opinion remains that these categories will stay current for the foreseeable future.  This month’s Visa Bulletin included a note confirming that these categories will stay current at least through May, which is the furthest projection that the DOS will make, i.e. 3 months into the future.

India EB-1 moved ahead 3.5 more months, after six months in December and five months in January. Unfortunately, India EB-2 and EB-3 each moved ahead by only about two weeks.  These slow progressions, along with the large number of India EB-2 and EB-3 filings in October, November, and December, probably means that we should only expect 1-4 week movements in India EB-2 or EB-3 for at least the rest of 2021.  This month’s Visa Bulletin included a note confirming that the EB-2 and EB-3 categories should move two weeks on average through the May Visa Bulletin.

China EB-2 and EB-3 again both moved forward by a few weeks, a trend that should continue. China EB-1 showed more progress than expected, perhaps because of declining rates of visa issuance out of the American posts in China.  This month’s Visa Bulletin included a note that says that EB-2 and EB-3 should move 2-3 weeks on average through the May Visa Bulletin.

A LOOK BACK, AND A LOOK AHEAD

Join is for a review of some of the immigration changes that took place in 2020 and a look forward to the changes coming in 2021, specifically for the H-1B cap. Interested clients and friends can register for our webinar by clicking on the link below.

REGISTER HERE

MU Law will be hosting a free webinar for our clients and friends on Tuesday, January 26, 2021 at 2PM Eastern (1PM Central).

Join us for this FREE webinar to learn more about:

• H-1B Cap Basics, Registration Process, and Projections
• NEW RULE: H-1B lottery system, selection by wage
• NEW RULE: DOL Rule Regarding Calculation of Prevailing Wage
• H-1B Specialty Occupation
• H-1B Dependency
• H-1B issues for Staffing Companies and Third-Party Placement
• Third- Party Placement v. In-House work?
• Employer-Employee Relationships
• Cap-Gap for F-1s
• CPT / OPT Maintenance
• Top 10 things H-1B employers can do to stay compliant

PLEASE JOIN US! 

DOL DRAMATICALLY RAISES PREVAILING WAGES

DOL DRAMATICALLY RAISES PREVAILING WAGES

On January 14, 2021 the US Department of Labor (DOL) published its Final Rule regarding the calculation of prevailing wages.  Readers of our blog will note that the DOL previously issued an Interim Rule about calculation of prevailing wages which was struck down by Federal Judges late last year.  The Final Rule published on January 14, 2021 is the updated version of the Interim Rule.

 

Summary of the Final Rule

The Final Rule will dramatically change the calculation of prevailing wage levels resulting in significantly higher prevailing wages.  While the new percentiles are lower than the October 2020 Interim Rule’s percentiles, the new percentiles are still considerably higher than the current percentiles. 

 

Wage Level	Current Percentile	October 2020 Interim Rule Percentile	January 2021 Final Rule Percentile
1	17	45	35
2	34	62	53
3	50	78	72
4	67	95	90

 

The Final Rule applies to prevailing wages applicable to applications for H-1Bs, H-1B1s, E-3s, and Green Cards.

 

Transition Periods

The Final Rule attempts to provide employers and foreign nationals an opportunity to adapt to the change in calculations.  For those who did not have an I-140 approval in hand as of October 8, 2020, the transition will occur over an eighteen-month period:

• Stage One, Present to June 30, 2021: Current Percentiles remain in effect
• Stage Two, July 1, 2021 to June 30, 2022: 90% of the Final Rule percentile
• Stage Three, July 1, 2022 and Beyond: 100% of the Final Rule percentile

For those who did have an I-140 approval in hand as of October 8, 2020, and so are applying for a post-six year H-1B extension, the transition will occur over an three and a half year period:

• Stage One, Present to June 30, 2021: Current Percentiles remain in effect
• Stage Two, July 1, 2021 to June 30, 2022:85% of the Final Rule percentile
• Stage Three, July 1, 2022 and Beyond: 90% of the Final Rule percentile
• Stage Four, July 1, 2023 and Beyond: 95% of the Final Rule percentile
• Stage Five, July 1, 2024 and Beyond: 100% of the Final Rule percentile

The American Immigration Lawyers’ Association (AILA) reported that President-Elect Biden’s transition team will issue an immediate 60-day delay to the implementation of this and other last-minute regulations promulgated by the Trump presidency, but how the Biden Administration will move forward remains unknown.

 

Alternative Wage Surveys

Alternative Wage Surveys may be accepted by the DOL if the survey meets specific requirements.  Employers concerned about the Final Rule and its implications for their employees may want to consider using an Alternative Wage Survey in place of the DOL’s wage survey.  For more information about which wage surveys may be accepted by the DOL, please contact your MU attorney. 

A LOOK BACK, AND A LOOK AHEAD

Join is for a review of some of the immigration changes that took place in 2020 and a look forward to the changes coming in 2021, specifically for the H-1B cap. Interested clients and friends can register for our webinar by clicking on the link below.

REGISTER HERE

MU Law will be hosting a free webinar for our clients and friends on Tuesday, January 26, 2021 at 2PM Eastern (1PM Central).

Join us for this FREE webinar to learn more about:

• H-1B Cap Basics, Registration Process, and Projections
• NEW RULE: H-1B lottery system, selection by wage
• NEW RULE: DOL Rule Regarding Calculation of Prevailing Wage
• H-1B Specialty Occupation
• H-1B Dependency
• H-1B issues for Staffing Companies and Third-Party Placement
• Third- Party Placement v. In-House work?
• Employer-Employee Relationships
• Cap-Gap for F-1s
• CPT / OPT Maintenance
• Top 10 things H-1B employers can do to stay compliant

PLEASE JOIN US!

USCIS TO REPLACE H-1B LOTTERY: ONLY H-1s WITH THE GREATEST WAGES WILL BE SELECTED

USCIS has issued a final rule that will replace the H-1B cap lottery with a wage-based selection process.  The new process selects the highest OES prevailing wage level, starting with Level IV.  If there are more than 85,000 petitions filed with a Level IV wage, then the USCIS will hold a lottery just for the Level IV petitions.  If there are fewer than 85,000 that are filed with a Level IV wage, then the USCIS will take all petitions that are filed with Level III wage.  The process then continues for Level II and I, until the full allotment of 85,000 have been selected.  USCIS reserves 20,000 of the 85,000 H-1B slots for master degreed holders from US universities. 

The rule will take effect in 60 days, in time for the March 2021 H-1B cap season.  The incoming Biden could theoretically place the regulation on hold. The rule could also be challenged in court.   

Because we will not know in advance how many will be petitioned under Level IV, III, II, or I, it is impossible to know what wage level will guarantee a chance at an H-1B slot, although a petition filed with a Level IV wage should have a good chance of success. 

Another complicating factor is that it is very difficult to assess how COVID and/or the economy will affect the volume of H-1B cap petitions that will be filed this year.  The USCIS received over 250,000 H-1B cap petitions in both 2019 and 2020.

JANUARY 2021 VISA BULLETIN: ANALYSIS AND PREDICTIONS

The Department of State has just issued the January 2020 Visa Bulletin. This is the fourth Visa Bulletin of Fiscal Year 2021. This blog post analyzes this month's Visa Bulletin.

Visa Bulletin

Table A: Final Action Dates -- Applications with these dates may be approved for their Green Card (Permanent Residency card) or Immigrant Visa appointment.

 

Employment- based	All Other	CHINA	INDIA	PHILIPPINES
1st	C	01SEP19	01SEP19	C
2nd	C	01JUN16	01OCT09	C
3rd	C	05DEC17	15MAR10	C

 

Table B: Dates of Filing

The USCIS will be using the Table A: Final Action Dates chart for I-485 filings.  A beneficiary must be current on the above Table A chart in order to file their I-485, Adjustment of Status applications.

MU Law Analysis

Both the Philippines and Worldwide (All Other) EB-3 continue to be current.  We expect these categories to stay current for the foreseeable future.  The only constraint to the Philippine EB-3 visas being issued is the capacity at the Embassy in Manila.  It remains to be seen how increasing COVID infection rates bear on embassies capacities.

India had another month defined by variance.  India EB-1 moved ahead five more months, after six months in December.  Unfortunately, India EB-2 and EB-3 each moved ahead by only one week.  These slow progressions, along with the large number of India EB-2 and EB-3 filings in October, November, and December, probably means that no further material progress will happen in India EB-3 for a long time.

China EB-2 and EB-3 again both moved forward by a few weeks, a trend that may continue.  China EB-1 showed more progress than expected, perhaps because of declining rates of visa issuance out of the American posts in China.

MU expects that future Visa Bulletins will continue to have positive news, including slow but continued forward progression in the Chinese and Indian categories.  We also expect the Philippine and Worldwide categories will remain current for the foreseeable future.

SCHEDULE A POLICY MANUAL CHANGES

As part of its process in retiring the previously used, Adjudicator’s Field Manual, USCIS recently released updated guidance on Schedule A designations in its Policy Manual. While the guidance is substantively unchanged for the most part, USCIS has added more detail which will hopefully result in more consistent adjudication.  This chapter in the Policy Manual can be found in its entirety on the USCIS website:

https://www.uscis.gov/policy-manual/volume-6-part-e-chapter-7

Here are two notable changes/updates: 

No Requirement for end-client contracts.  Employers that staff Physical Therapists or Registered Nurses at third party worksites will be pleased to find that USCIS has explicitly stated in the Policy Manual that there is no requirement for an employer to provide contracts between itself and its clients. Over the past several years our firm had seen an increasing trend of RFEs requesting such contracts. It would seem that USCIS is at the very least acknowledging that client contracts are not an evidentiary requirement. 

USCIS still retains the right to request such contracts if it has a “reasonable and articulable reason” that there is not a bona fide job offer available. Therefore, while USCIS acknowledges that it is not a requirement, it is likely that the Service will still make requests for client contracts, but perhaps in less cases. 

Only one 9089 is required, perhaps.  Traditionally, a Schedule A, I-140 petition required two uncertified ETA Form 9089s with original signatures. The requirement for a duplicate ETA Form 9089 is no longer present in this update. Historically, USCIS required a duplicate copy so that upon approval, USCIS would retain a copy, and the other would be provided to the DOL. That process is also missing from the Policy Manual now, and instead it indicates that USCIS will simply retain the ETA Form 9089 whether the petition is approved or denied. Without further confirmation of this change though, it would be prudent to still include the duplicate copy with the I-140, but our firm will monitor if further clarification is made by USCIS.

FEDERAL JUDGE BLOCKS TRUMP ADMINISTRATION’S ATTEMPT TO DISMANTLE LEGAL IMMIGRATION

In a striking rebuke of the Trump Administration’s attempts to dismantle legal immigration, the U.S. District Court for the Northern District of California has set aside both (i) the DHS interim final rule (IFR), Strengthening the H-1B Nonimmigrant Visa Classification Program, and (ii) the DOL IFR, Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States.  

This twin-killing of Trump policy does several things:

• It reinstates the prior DOL OES wage survey back to the formula that has been in place for more than a decade.
• It resets H-1B law, allowing third-party placement, three year-approval notices and a fuller range of approvable H-1Bs. 

The Court’s decision, which was issued last night, said that, the Administration, "failed to show there was good cause to dispense with the rational and thoughtful discourse that is provided by the APA's notice and comment requirements.”  MU Law will provide updates as more information is available. 

DECEMBER 2020 VISA BULLETIN: ANALYSIS AND PREDICTIONS

The Department of State has just issued the December 2020 Visa Bulletin. This is the third Visa Bulletin of Fiscal Year 2021. This blog post analyzes this month's Visa Bulletin.

December 2020 Visa Bulletin

Table A: Final Action Dates -- Applications with these dates may be approved for their Green Card (Permanent Residency card) or Immigrant Visa appointment.

Employment- based	All Other	CHINA	INDIA	PHILIPPINES
1st	C	01APR19	01APR19	C
2nd	C	01MAY16	01OCT09	C
3rd	C	01NOV17	15MAR10	C

Table B: Dates of Filing

The USCIS again announced that it will allow the more favorable Date of Filing chart for I-485 Adjustment of Status. This means that all employment-based immigrants in EB-1, EB-2 or EB-3 can file their I-485s.  However, if they are natives of India or China, their priority date must be earlier than these dates:

Employment Based	CHINA-mainland	INDIA
1st	01NOV20	01NOV20
2nd	01OCT16	15MAY11
3rd	01JUN18	01JAN15

MU Law Analysis

Unlike last month, the DOS issued a timely Visa Bulletin for December. 

Both the Philippines and Worldwide (All Other) EB-3 continue to be current.  We expect these categories to stay current for the foreseeable future.  The only constraint to the Philippine EB-3 visas being issued is the capacity at the Embassy in Manila.  It remains to be seen how increasing COVID infection rates bear on embassies capacities.

India had another month defined by variance.  India EB-1 moved ahead six months.  India EB-2 and EB-3 each moved ahead by about 1-2 weeks.  The interesting news was that the Dates of Filing for India EB-3 retrogressed by a year, reflecting the fact that an enormous number of India EB-3 I-485s have been filed in October and November.  This retrogression probably means that no further material progress will happen in India EB-3 for a long time.

China EB-2 and EB-3 both moved forward by a few weeks, a trend that may continue.  China EB-1 showed more progress than expected, perhaps because of declining rates of visa issuance out of the American posts in China.

MU expects that future Visa Bulletins will continue to have positive news, including slow but continued forward progression in the Chinese and Indian categories.  We also expect the Philippine and Worldwide categories will remain current for the foreseeable future.