POTENTIAL GOVERNMENT SHUTDOWN: HOW IT AFFECTS YOUR IMMIGRATION CASE

Unless Congress passes a spending bill in the coming week, the US government will shut down at midnight on Sunday, Oct. 1. However, not all immigration processes will halt immediately in light of a shutdown.

Immigration cases proceed through several different government agencies. A shutdown will affect certain agencies (and thus their processes) differently than others. 

What will Halt as of an Oct. 1 Shutdown 

DOL

Most significant to employment-based immigration cases, the Department of Labor (DOL) will not operate during a government shutdown.

Labor Condition Applications (LCAs), required for H-1B and E-3 filings, and Permanent Labor Certifications (PERMs), required for I-140 filings, cannot be drafted or filed during a government shutdown, and pending LCAs and PERMs will not be issued during a shutdown.

Further, the DOL confirmed to the American Immigration Lawyers Association (AILA) that the full FLAG online filing system will be disabled during a government shutdown. LCA and PERM records cannot be accessed online or printed from the FLAG system during a shutdown.

The DOL and MU recommend that all LCA and PERM filings be filed this week, prior to the potential shutdown. While LCAs typically take at least 7 days to be adjudicated by the DOL, the DOL indicated that it will attempt to adjudicate LCAs that are received this week prior to the potential shutdown.

Finally, the DOL may allow flexibility for employers who miss filing deadlines due to the government shutdown; if such guidance is issued, MU will update its blog accordingly.

What May Proceed after an Oct. 1 Shutdown?

USCIS

Cases that will be filed with or are currently pending with US Citizenship and Immigration Services (USCIS) will likely proceed without issue during a shutdown. In past shutdowns, USCIS has accepted late immigration filings that could not be timely filed due to the government shutdown.

DOS

Embassy services, such as visa appointments, are run by the Department of State and are also unlikely to be affected during a shutdown.

CBP

Entries to the US, including Canadian TN appointments, are handled by Customs and Border Patrol and are also unlikely to be affected by a shutdown.

If you are unclear how the shutdown will affect your case, clients are encouraged to contact their MU attorney for best strategies in the week ahead and during the potential government shutdown.

IMPLEMENTATION OF DOL RULE INCREASING PREVAILING WAGES DELAYED

The US Department of Labor (DOL) has delayed the new rule which would change the method for calculating prevailing wages for 18 months. 

In October 2020, the DOL announced an Interim Rule which changed the computation of wage levels and dramatically increased prevailing wages.  The October 2020 Interim Rule was later struck down by the courts, but was later re-issued as a Final Rule in January 2021. 

On January 14, 2021 the DOL published its Final Rule regarding increases in prevailing wages for H-1B, H-1B1, E-3, and Green Card cases. You can find our blog post summarizing the Final Rule here.  

The Final Rule was initially set to take effect May 14, 2021 and wages issued after July 1, 2021 would be impacted. However, the DOL has postponed the effective date of the Final Rule by 18 months until November 14, 2022. The DOL delayed the start of the transition period to the new prevailing wage levels from July 1, 2021 to January 1, 2023. 

The DOL is implementing this delay to allow for more time to fully analyze the legal and policy issues raised by the rule, as well as to validate the prevailing wage data. This official delay is expected to be effective on March 22, 2021.

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! 

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. 

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. 

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.

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. 

REMINDER - OVERVIEW OF UPDATES FROM THE USCIS, DOL, AND DOS

MU Law will be hosting a free webinar for our clients and friends on Monday, October 12, 2020 at 2PM Eastern (1PM Central).  Interested clients and friends can register for our webinar by clicking on the link below.

 REGISTER HERE

Are you feeling dizzy from all the changes in immigration lately?  Join us for this FREE webinar to learn more about:

• Furloughs at USCIS
• Recap of the Presidential Proclamations from April and June 2020
• 221Gs from the US Embassy in Manila
• The Public Charge Rule
• October Visa Bulletin
• EB2 to EB3 Downgrading options for Indian and Chinese nationals
• Detailed Risk Analysis of I-140 Amendments
• USCIS Fee Increases
• New Department of Labor rule regarding prevailing wage calculations
• New USCIS rule regarding qualification for H-1B

 

PLEASE JOIN US!

REMINDER - OVERVIEW OF UPDATES FROM THE USCIS, DOL, AND DOS

MU Law will be hosting a free webinar for our clients and friends on Monday, October 12, 2020 at 2PM Eastern (1PM Central).  Interested clients and friends can register for our webinar by clicking on the link below.

 REGISTER HERE

Are you feeling dizzy from all the changes in immigration lately?  Join us for this FREE webinar to learn more about:

• Furloughs at USCIS
• Recap of the Presidential Proclamations from April and June 2020
• 221Gs from the US Embassy in Manila
• The Public Charge Rule
• October Visa Bulletin
• EB2 to EB3 Downgrading options for Indian and Chinese nationals
• Detailed Risk Analysis of I-140 Amendments
• USCIS Fee Increases
• New Department of Labor rule regarding prevailing wage calculations
• New USCIS rule regarding qualification for H-1B

 

PLEASE JOIN US!

OVERVIEW OF UPDATES FROM THE USCIS, DOL, AND DOS

MU Law will be hosting a free webinar for our clients and friends on Monday, October 12, 2020 at 2PM Eastern (1PM Central).  Interested clients and friends can register for our webinar by clicking on the link below.

 REGISTER HERE

Are you feeling dizzy from all the changes in immigration lately?  Join us for this FREE webinar to learn more about:

• Furloughs at USCIS
• Recap of the Presidential Proclamations from April and June 2020
• 221Gs from the US Embassy in Manila
• The Public Charge Rule
• October Visa Bulletin
• EB2 to EB3 Downgrading options for Indian and Chinese nationals
• Detailed Risk Analysis of I-140 Amendments
• USCIS Fee Increases
• New Department of Labor rule regarding prevailing wage calculations
• New USCIS rule regarding qualification for H-1B

 

PLEASE JOIN US!

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.

DOL Rule

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

USCIS Rule

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.

PWDs WILL CONTINUE TO TAKE 4 MONTHS (AND OTHER NOTES FROM DOL)

On November 5, 2019 the Department of Labor held a presentation and gave updates to a number of their programs.  AILA has reported on the update.  The updates include:

-DOL expects that PWD processing times will remain at 4 months, despite its goal to get the processing time down to 90 days.

-The Form 9141 (PWD) has been updated and posted to the OMB webpage.  The expectation is that it will go live in mid-2020. Until that time, the current Form 9141 remains valid, even though it lists an expired 10/31/2019 date.

-With the October launch of LCAs on the PERM system, iCert will soon be decommissioned.

-At some point PERM will move to the FLAG system, although it is not expected until 2021 at the earliest.

US DEPARTMENT OF LABOR (DOL) RELEASES NEW LABOR CONDITION APPLICATION (LCA)

Effective Monday, November 19, 2018, the DOL released a new LCA (Form ETA-9035) which must be used on all immigration filings going forward. A certified LCA must be included in immigration filings for H-1B, H-1B1, and E-3 status.  The DOL generally certifies an LCA approximately 7-10 days after submission of the LCA to the DOL.    

Certified and date-valid LCAs in the old format can still be used in immigration filings, provided the LCAs have unused slots in the appropriate filing category, e.g. new employment, continuation of employment without change, etc. 

For all immigration filings, the new LCA requires the legal business name of the end-client(s) as well as the street address of the worksite(s) where the employee will physically work.

For H-1B masters cap petitions, the new LCA requires:

o   The name of the institution that awarded the employee’s master’s degree;

o   The field of study in which the employee’s master’s degree was awarded;

o   The date on which the employee’s master’s degree was awarded; and

o   Documentation substantiating the employee’s master’s degree information.

MU’s employer checklists for H-1B, H-1B1, and E-3 filings have been updated to request this information from employers at case initiation. 

DECEMBER 2018 VISA BULLETIN: TRENDS AND PREDICTIONS

The Department of State has just issued the December 2018 Visa Bulletin. This is the third Visa Bulletin of Fiscal Year 2019. This blog post analyzes this month's Visa Bulletin.

December 2018 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.

EB  Class	All Other	CHINA	INDIA	PHIL'PNES
EB-1	01JUL17	01SEP16	01SEP16	01JUL17
EB-2	C	01JUL15	01APR09	C
EB-3	C	08JUN15	01MAR09	15JUN17

Table B: Dates for Filing -- The DOS may work on applications with these dates. But the Visa cannot be approved until the date is current per Table A.

EB  Class	All Other	CHINA	INDIA	PHIL'PNES
EB-1	01JUN18	01OCT17	01OCT17	01JUN18
EB-2	C	08SEP15	22MAY09	C
EB-3	C	01DEC15	01JAN10	01AUG17

MU Law Analysis (all references are to Table A unless noted)

All Other, Mexico: As we expected, the EB-1 category moved several months. We expect continued steady movement in this category for All Other.

China: Likewise, the China EB-1 category progressed several months. This category may not move as fast as All Other in the next few Visa Bulletins. China EB-2 moved two months, although EB-3 only advanced one week. We expect EB-3 to slightly outpace EB-2 in the next few Visa Bulletins.

India: The Indian EB-3 date moved two months, which was more than expected. There is a chance that EB-3 continues to move at this pace for the next few Visa Bulletins. We expect the slow/no progress to be standard for EB-2 in the first part of FY 2019.

Philippines: The EB-3 date again also only moved up by week, which is slower than we would have liked to have seen. While over the course of FY2019, we should eventually see the EB-3 priority date extend into CY2018, we do not expect too much movement in the next few Visa Bulletins.

DID THE DOL ELIMINATE STAFFING COMPANY GREEN CARDS?

Thank goodness the answer is NO.  Green cards are still viable for roving employees and for staffing company employees.

Nevertheless, the rumor that the DOL has “cancelled” the long-standing Farmer Memo has been flying around the internet.  A cancellation of the Farmer Memo could be seen a massive strike against the viability of “roving employee” green cards, which make up the bulk of IT and healthcare staffing company’s green cards. 

Thankfully, AILA has confirmed that the rumor is false.  The Farmer Memo is still good guidance for PERM green cards.  The recent "cancellation" notification of the Farmer Memo that appeared on the DOL website is “simply an administrative system update that does not reflect any policy change.”

The Farmer Memo, which has existed since 1994, provides the basis for green cards where the employer does not know where the employee will actually work, as is the case for most staffing companies.  The Farmer Memo instructs staffing company petitioners to use the employer’s headquarters as the “worksite”.  The Memo has been cited by the DOL countless times as good law, notably in Matter of Amsol.

Relevant section of the Farmer Memo

10. LABOR CERTIFICATION APPLICATIONS WHERE ALIENS WILL BE WORKING AT VARIOUS UNANTICIPATED SITES Applications involving job opportunities which require the beneficiary to work in various locations throughout the U.S. that cannot be anticipated should be filed with the local Employment Service office having jurisdiction over the area in which the employer's main or headquarters office is located.

In Item 7 (address where alien will work) of part A of the Application for Alien Employment Certification, the employer should indicate that the alien will be working at various unanticipated locations throughout the U.S. A short statement should also be included explaining why it is not possible to predict where the work sites will be at the time the application is filed.

No Impact on Schedule A cases

Even if the Farmer Memo had been cancelled, Schedule A cases would not have been impacted.  Schedule A cases are green card petitions for Nurses and Physical Therapists.  The DOL’s PERM FAQ website still contains this FAQ (Notice of Filing FAQ #12), which allows roving employees and provides guidance on how to prepare Schedule A green card petitions.

12. Where must I post a Notice of Filing for a permanent labor certification for roving employees?

If the employer knows where the Schedule A employee will be placed, the employer must post the notice at that work-site(s) where the employee will perform the work and publish the notice internally using in-house media--whether electronic or print--in accordance with the normal internal procedures used by the employer to notify its employees of employment opportunities in the occupation in question. The prevailing wage indicated in the notice will be the wage applicable to the area of intended employment where the worksite is located.

If the employer does not know where the Schedule A employee will be placed, the employer must post the notice at that work-site(s) of all of its current clients, and publish the notice of filing internally using electronic and print media according to the normal internal procedures used by the employer to notify its employees of employment opportunities in the occupation in question. The prevailing wage will be derived from the area of the staffing agencies' headquarters.

If the work-site(s) is unknown and the staffing agency has no clients, the application would be denied based on the fact that this circumstance indicates no bona-fide job opportunity exists. The employer cannot establish an actual job opportunity under this circumstance. A denial is consistent with established policy in other foreign labor certification programs where certification is not granted for jobs that do not exist at the time of application.