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Category: H-1B

New Regulation to Increase Minimum Wages for H-1B, H-1B1, E-3 and PERMS Under Review

Posted September 17, 2020Stephanie Wedel - Sr. AssociateArticles, Green Card, H-1B
The Department of Labor (DOL) has submitted a regulation to the Office of Management and Budget (OMB) that will change the wage levels and requirements in the H-1B, H-1B1, E-3 and PERM programs. DOL is intending to issue the regulation as an interim final rule so it can be implemented immediately. This fast-track plan prevents the public from providing feedback before the rule takes effect. The details of the regulation will remain confidential until the rule is released for publication.  The rule is expected to increase minimum wages as well as increased wage requirements for employers. Expectations OMB has up to 90 days to review the regulation, but this review can be completed sooner. Once review is completed, the regulation will be published to the Federal Register and is expected to take effect immediately after publication. We are closely monitoring the matter and will provide updates as they are made available. Please contact your designated Meltzer Hellrung attorney or consultation@meltzerhellrung.com with any questions.

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Preliminary Injunction on DHS Public Charge Rule Lifted

Posted September 14, 2020Cheryl Kilborn - Sr. AssociateGreen Card, H-1B

We recently reported that the federal district court for the Southern District of New York to the Second Circuit issued 2 nationwide injunctions related to the Department of Homeland Security (DHS) Public Charge Rule and the Department of State (DOS) Public Charge Rule and Health Insurance Proclamation.

Background

  • In early August, a federal appellate judge narrowed the nationwide injunction and held that for the time being, the DHS Public Charge Rule cannot be applied to residents of New York, Connecticut and Vermont.
  • On Friday, the appellate judge’s decision was reviewed by a three-judge panel, and the preliminary injunction was lifted. The injunction preventing implementation of DOS’s Public Charge Rules and the Health Insurance Proclamation are still in effect nationwide.

Next Steps

  • USCIS is now authorized to apply the Public Charge Rule to residents of all states. This includes for any period during which there is a declared national health emergency in response to the COVID-19 outbreak.
  • We expect that USCIS will soon announce that it will reject any Form I-485 for not including Form I-944 and Forms I-129 and I-539 where Part 6, or Parts 5, respectively, have been left blank.

Please reach out to your designated Meltzer Hellrung attorney with any questions or contact our firm at: consultation@meltzerhellrung.com.

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New Regulation to Toughen H-1B Requirements Under Review

Posted September 8, 2020Stephanie Wedel - Sr. AssociateH-1B

 

The Department of Homeland Security (DHS) has submitted a regulation to the Office of Management and Budget (OMB) that will toughen the H-1B eligibility criteria and impose new requirements on H-1B employers.  This review is the next step toward having the regulation take effect, which the Trump administration has made a priority since the proclamation suspending entry of certain H-1B, L-1, and J-1 non-immigrants.  

DHS is intending to issue the regulation as an interim final rule so it can be implemented immediately. This fast-track plan prevents the public from providing feedback before the rule takes effect.

The details of the regulation will remain confidential until the rule is released for publication.  The rule is expected to revise the definition of specialty occupation, H-1B employment, and employer-employee relationship.  It is anticipated there will be a restriction on offsite placement for H-1B workers, including a joint labor condition application (LCA) requirement.

Expectations

OMB has up to 90 days to review the regulation, but this review can be completed sooner. Once review is completed, the regulation will be published to the Federal Register and is expected to take effect immediately after publication.

We expect this change in regulations to be enjoined in a lawsuit as the immediate implementation without public comment will likely be found unreasonable by a court.

We are closely monitoring the matter and will provide updates as they are made available.

Please contact your designated Meltzer Hellrung attorney or consultation@meltzerhellrung.com with any questions.

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USCIS Selects Additional H-1B Candidates for the FY2021 H-1B Cap

Posted August 14, 2020Cheryl Kilborn - Sr. AssociateH-1B

On August 14, 2020, USCIS conducted a second lottery for the FY2021 Cap. Employers or their representatives started receiving email notifications early this morning that new H-1B registrations had been selected for submission. Notably, unlike the previous lottery conducted on March 28, 2020, the registration notices for this round have “August 2020 Selection of Reserve Registration” printed prominently on the center of the notice. This is because the annual quota of 85,000 visas had not been reached with the initial lottery.

Cap subject H-1B petitions for selected candidates must be filed within the time period indicated on the selection notice and must still be sent, via standard paper filing, to the USCIS Service Center indicated on the selection notice. The filing period for this second round of selections is August 17, 2020, to November 16, 2020. Even though these can be filed as early as August 17, 2020, the start date must still be no earlier than October 1, 2020.

Because filing fees for all H-1B petitions, including H-1B Cap filings will increase on October 2, 2020, we anticipate a surge in filings before that date. Premium processing is still available for all H-1B petitions, including FY2021 H-1B Cap filings, but could be suspended based on a high number of filings in August and September and/or because of impending furloughs at USCIS.

Please reach out to your designated Meltzer Hellrung professional if you have any questions or concerns or contact us at consultation@meltzerhellrung.com for assistance.

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Exceptions to Presidential Proclamations (10014 & 10052) - Update for H-1B and L-1 Statuses

Posted August 12, 2020H-1B

The Department of State has issued additional clarification surrounding the Presidential Proclamation issued on June 22, suspending the entry to the United States of foreign nationals of certain visa categories, including H-1B, H-2B, and L-1 visa; J-1 visa applicants participating in the intern, trainee, teacher, camp counselor, au pair, or summer work travel programs; and any spouses or children covered applicants applying for H-4, L-2, or J-2 visas. 

Proclamation does not apply to individuals who:

  • Were in the United States on June 24th, or
  • Had a valid H-1B, H-2B, L-1, or J-1 visa and plans to enter the U.S. using that visa, or
  • Had another official travel document valid on June 24th.

If an H-1B, H-2B, L-1, or J-1 visa holder is not subject to the Proclamation, then neither the individual nor their dependent family members (spouse and children) would be prevented from obtaining a visa.

National Interest Exceptions to the Proclamation

H-1B applicants:

  • For travel as a public health or health care professional, or researcher to alleviate the effects of the COVID-19 pandemic, or to conduct ongoing medical research in an area with a substantial public health benefit
  • Travel supported by a request from a U.S. government agency or entity to meet critical U.S. foreign policy objectives or to satisfy treaty or contractual obligations.
  • Travel by applicants seeking to resume ongoing employment in the United States in the same position with the same employer and visa classification.  Forcing employers to replace employees in this situation may cause financial hardship.  

Travel by technical specialists, senior level managers, and other workers whose travel is necessary to the immediate and continued economic recovery of the United States.  Consular officers may determine that an H-1B applicant falls into this category when at least two of the following five indicators are present:

  • The petitioning employer has a continued need for the services or labor to be performed by the H-1B visa holder in the U.S.
    • Typically demonstrated by a Labor Condition Application (LCA) approved by the Department of Labor (DOL) during or after July 2020.
    • For LCAs approved before July 2020, the consular officer must determine the continued need from the visa application.
    • If an applicant is currently performing, or able to perform the essential functions remotely, then this indicator is not present.
  • The job duties or position within the company demonstrate the applicant will provide significant and unique contributions to an employer meeting a critical infrastructure need. Critical infrastructure fields include: chemical, communications, dams, defense industrial base, emergency services, energy, financial services, food and agriculture, government facilities,healthcare and public health, information technology, nuclear reactors, transportation, and water systems.
    • Senior level placement within the company or job duties showing performance of functions that are both unique and vital to the management and success of the overall business enterprise; or
    • Proposed job duties and specialized qualifications show that the individual will be making significant and unique contributions to the company.
  • The wage to be paid to the individual exceeds the prevailing wage rate by at least 15% (Part F, Questions 10 and 11 on the LCA).
  • Individual’s education, training, and/or experience demonstrate unusual expertise in the specialty occupation that individual will be employed.
  • Denial of the visa will cause financial hardship to the U.S. employer.
    • Employer’s inability to meet financial or contractual obligations
    • Employer’s inability to continue its business
    • Delay or impediment to employer’s ability to return to its pre-COVID-19 level of operations.

  L-1A applicants

  • Travel as a public health or healthcare professional, or researcher to alleviate the effects of the COVID-19 pandemic, or to conduct ongoing medical research in an area with a substantial public health benefit. 
  • Travel based on a request from a U.S. government agency or entity to meet critical foreign policy objectives or satisfy treaty or contractual obligations.
  • Travel by applicants seeking to resume ongoing employment in the United States in the same position with the same employer and visa classification.   Forcing employers to replace employees in this situation may cause undue financial hardship. 
  • Travel by a senior level executive or manager filling a critical business need of an employer meeting a critical infrastructure need. An L-1A applicant falls into this category when at least two of the following three indicators are present AND the L-1A applicant is not seeking to establish a new office in the United States:
    • Senior-level executive or manager;
    • Has spent multiple years with the company overseas, indicating substantial knowledge and expertise within the organization that can only be replicated by a new employee after extensive training;
    • Will fill a critical business need for a company meeting a critical infrastructure need.

L-1A applicants seeking to establish a new office in the United States likely do NOT fall into this category, unless two of the three criteria are met AND the new office will employ, directly or indirectly, five or more U.S. workers.

L-1B applicants

  • Travel as a public health or healthcare professional, or researcher to alleviate the effects of the COVID-19 pandemic, or to conduct ongoing medical research in an area with a substantial public health benefit. 
  • Travel based on a request from a U.S. government agency or entity to meet critical foreign policy objectives or satisfy treaty or contractual obligations. 
  • Travel by applicants seeking to resume ongoing employment in the United States in the same position with the same employer and visa classification.  Forcing employers to replace employees in this situation may cause undue financial hardship.    
  • Travel as a technical expert or specialist meeting a critical infrastructure need.  The consular officer may determine that an L-1B applicant falls into this category if all three of the following indicators are present:
    • Proposed job duties and specialized knowledge indicate that the individual will provide significant and unique contributions to the petitioning company
    • Individual’s specialized knowledge is specifically related to a critical infrastructure need; AND
    • Applicant has spent multiple years with the company overseas, indicating a substantial knowledge and expertise within the organization that can only be replicated by a new employee following extensive training.

J-1 applicants

  • Provide care for a minor U.S. citizen, legal permanent resident (LPR), or nonimmigrant by an au pair possessing special skills required for a child with particular needs (e.g. medical, special education, or sign language).
  • An au pair that prevents a U.S. citizen, LPR, or nonimmigrant from becoming a public health charge or ward of the state.
  • Childcare services provided for a child whose parents are involved with the provision of medical care to individuals with COVID-19 or medical research to combat COVID-19.
  • Exchange program conducted pursuant to an MOU, Statement of Intent, or other valid agreement or arrangement between a foreign government and any federal, state or local government entity in the U.S. designed to promote U.S. national interests if the agreement was in effect prior to June 24th.
  • Interns and trainees on U.S. government agency-sponsored programs that support the immediate and continued economic recovery of the U.S.
  • Specialized teachers in accredited educational institutions, demonstrating the ability to make specialized contribution to the education of students in the U.S.
  • Exchange programs that fulfill critical and time sensitive foreign policy objectives.

H-4, L-2, and J-2 applicants

  • National interest exceptions are available for those dependents who will be joining a principal applicant that has been granted one of the above exceptions.

Please reach out to your designated Meltzer Hellrung professional if you have any questions or concerns or contact us at consultation@meltzerhellrung.com for assistance.

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