Wednesday, October 7, 2020

DOL AND USCIS DRAMATICALLY ALTER EMPLOYMENT BASED IMMIGRATION

In two sweeping and lengthy regulations the USCIS and DOL have attempted to jam through last minute rules that dramatically alter employment-based immigration.  The DOL rule takes effect on Thursday October 8. The USCIS rule will take effect in 60 days. Both rules are expected to be challenged in court.

The DOL rule dramatically increases prevailing wages for H-1B and EB-2 and EB-3 workers.  The rule changes the computation of Level I, II, III, and IV.  Current Prevailing wages use this formula:

Level            US wage percentile
I                  17
II                 34
III                50
IV                67

The new rule changes the formula:

Level            US wage percentile
I                  45
II                 62
III                78
IV                95

The new USCIS regulation will be published on October 8 and take effect 60 days later. It applies only to petitions filed on or after the effective date.
The rule implements several changes:
  • It revises the H-1B definition of “specialty occupation” in a very limiting way.  This new regulation seeks to rewrite the approvability of H-1B visas. The USCIS has consistently lost in federal court because it has repeatedly misapplied its own definition of specialty occupation.  This regulatory change seeks to reduce the likelihood of the USCIS losing on this issue in federal court.
  • The new rule limits third-party placement H-1B validity to one-year increments.  There does not appear to be any statutory justification for this change other than the USCIS’ own belief that third-party placements cause more fraud.  As with the rewrite of the specialty occupation rule, this regulatory change seeks to reduce the likelihood of the USCIS losing on this issue in federal court.
  • It also reimposes contract and itinerary requirements in H-1B petitions, which had been ruled illegal by several federal courts.  Again, the USCIS seeks to reduce the likelihood of the USCIS losing on this issue in federal court.
Musillo Unkenholt will shortly have more detail about these two massive new changes.

11 comments:

  1. what does it mean for people who will nust file for their EB3 application?

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    Replies
    1. Nothing other than the employer may be forced to pay a higher wage if they want to file a new I-140

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  2. What will happen with those who have a filed I-140 and still waiting for approval ? Thanks atty. More power

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    Replies
    1. Nothing at all. It only effects new I-140s, not existing approvals or pending I-140s.

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  3. Hi, atty. Does this rule apply to Schedule A worker?

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    Replies
    1. eventually it will unless it is challenged successfully

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  4. Atty what about the nurses who already had their visas since there is a great increase of the prevailing wage, can we ask for higher rate from our agency or employer specially if it was mentioned in the contract that we are going to receive the prevailing wage per state?

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  5. Atty,

    whether this law is applicable for eb3 green applicants or only for H1B applicants?

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  6. Is the RN new wages applicable while while filing I 140 petitions? What will be the hourly rates that will be given in letter to submitted during consulate interview?

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  7. Hello Atty, Does the new prevailing wage apply to RN's who are paid according to the CBA (Collective Bargaining Agreement)?

    ReplyDelete