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.

UPDATE: SCHEDULED WEBINAR PLATFORM CHANGED

The platform for MU’s webinar scheduled for Monday, November 16th at 2PM Eastern (1PM Central) discussing the Recap of Changes from the USCIS, DOL, AND DOS has changed from Livestorm to Zoom.
  
If you have already registered for Monday’s webinar, you will receive an email with your invite to the Zoom webinar. If you had not previously registered, you can still join the webinar. Click on Join the Webinar below.  No registration required.

Join the Webinar

UPDATE: SCHEDULED WEBINAR PLATFORM CHANGED

The platform for MU’s webinar scheduled for Monday, November 16^th discussing the Recap of Changes from the USCIS, DOL, AND DOS has changed from Livestorm to Zoom.

  
If you have already registered for Monday’s webinar, you will receive an email with your invite to the Zoom webinar. If you have not yet registered, there is still time to register by clicking on the link below.

REGISTER HERE

DHS PROPOSED RULE TO SELECT ONLY THE HIGHEST WAGES IN H-1B CAP

On November 2, 2020, DHS published in the Federal Register its proposed new rule for the 2021 CAP that would give priority to H-1B CAP candidates whose employer promises to pay the highest of the Occupational Employment Statistics (OES) wage levels. 

The OES categorizes wages from Levels I through IV for a particular position in a Metropolitan Statistical Area (MSA). In the H-1B context, the employer then chooses the appropriate wage level based on the experience and complexity of the position and can file a Labor Condition Application (LCA) using the OES wage assigned. 

According to the DHS’s proposed rule, only those H-1B CAP registrations offering the highest OES wage levels would be selected for filing in the 2021 CAP. This means that DHS would first accept Level IV wages, then Level III, etc. 

Keeping with the 2020 CAP changes, the USCIS’s current intent is to continue its electronic pre-registration system, requiring first a registration period of CAP petitions, and a later period of filing. DHS’s proposed rule intends to add a wage level question to its pre-registration form so that only the highest wage levels are selected for filing. 

The Master’s CAP, an allotment of 20,000 H-1Bs designated only for candidates possessing a master’s degree from an accredited U.S. university, is also in place for the 2021 CAP period. 

The proposed rule is currently accepting comments from the public until December 2, 2020, to which DHS will then respond and may alter some elements of the rule. 

RECAP OF CHANGES FROM THE USCIS, DOL, AND DOS

MU Law will be hosting a free webinar for our clients and friends on Monday, November 16, 2020 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 new USCIS rule on qualifying for H-1B

• The new DOL rule on wage calculations and alternative wage surveys

• Pending law suits on the new H-1B and wage rules

• The new USCIS rule on the H-1B lottery system

• The Public Charge rule

• The Visa Bulletin

• The new USCIS rule on F-1 duration of status

• Post-Election debrief and a look forward 

PLEASE JOIN US! 

DOL WAGES: LAWSUITS AND ALTERNATIVE SURVEYS

At our recent webinar, MU attorneys discussed the new DOL wage rule and how it could greatly raise prevailing wages for H-1B petitions and EB-2 and EB-3 green cards.  More on this topic here.   We want to give our clients and friends two updates: 

1.   Lawsuit.  MU along with some clients and the US Chamber of Commerce have been working on a lawsuit against both the DOL and the USCIS.  US Chamber of Commerce press release.  The lawsuit seeks to overturn both the new DOL wage computation used in their OES wage survey, and the three harsh changes to the H-1B definition.  The lawsuit was filed last week and there is a hearing on the case set for November 23.  If successful, the DOL and USCIS regulations could be nullified. 

2.   Alternative Wage Surveys.  The new DOL rule only raises the OES survey, which is the default survey used in H-1B cases, and in PWDs, which are used in EB-2 and EB-3 green card petitions.  The law still allows “alternative surveys.”  An alternative survey is any published or private survey that meets common statistical metrics, is recent, is geographically relevant, and covers the position in question.  

MU has identified several surveying companies that can be used for problematic wages.  As MU works your cases, we will let you know if we think that a survey may be a strategy worth pursuing.

NOVEMBER 2020 VISA BULLETIN: LATE PUBLICATION, BUT EXCELLENT NEWS

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

November 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	01DEC18	01DEC18	C
2nd	C	22APR16	22SEP09	C
3rd	C	01OCT17	01MAR10	C

 

Table B: Dates of Filing

Importantly, the USCIS 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 starting October 1, 2020.  However, if they are natives of India or China, their priority date must be earlier than these dates: 

Employment Based	CHINA-mainland	INDIA
1st	1-Sep-20	1-Sep-20
2nd	1-Oct-16	15-May-11
3rd	1-Jun-18	1-Jan-15
Other Workers	1-May-09	1-Jan-15

MU Law Analysis

For reasons that remain unclear the Department of State held back on publishing this Visa Bulletin about 2 weeks longer than usual.  Nevertheless, the Visa Bulletin showed continued positive trends. 

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.

The good news extended to India.  India EB-1, EB-2 and EB-3 all moved forward, ranging from several weeks to several months in all of these categories.  Similarly, China EB-1, EB-2 and EB-3 all moved forward at about the same rates as India.

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

IMPLICATIONS OF THE NEW DEPARTMENT OF LABOR WAGE LEVELS

Effective October 8, 2020, the Department of Labor (DOL) issued a new rule dramatically increasing prevailing wages for H-1B, EB-2, and EB-3 workers.  The new rule changes the computation of the four levels of wages when the DOL is using the Occupational Employment Statistics (OES).  For more detail about these changes, you can read our previous blog post on the rule.

A prevailing wage determination can only be issued by the DOL. The prevailing wage is based on the job duties, job requirements, and job location as provided by the employer on a prevailing wage request.  The prevailing wage for an H-1B, EB-2, or EB-3 worker, is the wage the foreign national is required to be paid by his or her employer upon approval of the H-1B or green card.

Frequently, employers and foreign nationals review the Foreign Labor Certification (FLC) Data Center website which publishes the OES wages and refer to the OES wages as the “prevailing wages.” The FLC Data Center wages are not prevailing wages. A prevailing wage determination (PWD) can only be issued by the DOL.

The OES is only one wage library the DOL can consult when issuing a PWD.  The DOL can also review private wage surveys, if the survey is provided by the employer at the time the wage request is made.  In order for a private wage survey to be accepted by the DOL, it must meet certain, specific requirements.  For more information about those requirements and which surveys might apply to your cases, please contact MU.

The new DOL wage rule only applies to wage determinations issued by the DOL or LCAs certified by the DOL on or after October 8, 2020.  Approved H-1Bs or I-140s are not required to be updated with the new wage calculations.  In addition, wage determinations which have been issued by the DOL and are valid through 2021 are not required to be updated.

Finally, there are several law suits which have already been filed challenging the new rule.  Please continue to read our blog for regular updates on these pending law suits and the wage rule.