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Proposed Change to Replace the H-1B Cap Lottery with a Wage-Based Selection Process

Posted November 3, 2020Cynthia S. Coulange - Sr. AssociateH-1B

The Department of Homeland Security has submitted a proposed rule to change the process which governs the way H-1B visas that are subject to the annual cap are selected. Each fiscal year there are 65,000 H-1B visas available for individuals who possess at least a bachelor’s degree (or its equivalent), and an additional 20,000 for those who have a U.S. master’s degree.   Currently, USCIS conducts a random lottery of the hundreds of thousands of cap-subject H-1B applicants each year for these available visas.

Proposed Changes:

  • Under the proposed rule, USCIS would select petitions using a wage-level-based process instead of the current lottery process. Petitions with higher wage levels will be prioritized over petitions which utilize lower wage levels.
  • Under this system petitioners are expected to potentially have the ability to improve their chance of being selected by agreeing to pay H-1B beneficiaries higher wages.

Expectations:

The administration argues that this proposed rule will further the Trump administration’s goal of prioritizing H-1B visa for employers who employ higher skilled and higher paid workers. The Department of Homeland Security will open a public comment period once the notice of proposed rulemaking is published with the Federal Register. Interested parties will have a 30-day period to submit comments regarding the proposed rule. Subsequently, interested parties will have an additional 60 days to comment on the proposed information collection before the rule is finalized. DHS will subsequently review the comments, consider them carefully, and draft responses before issuing the final rule.

Like other recent immigration proposals, this one is prone to challenge, particularly since DHS itself admitted in its 2019 preregistration regulation the following: "DHS believes, however, that prioritization of selection on other factors such as salary, would require statutory changes.” The NPRM is scheduled to be published in the Federal Register on November 2, 2020 and comments are due 30 days later.

Meltzer Hellrung will continue to monitor the proposed rule change and provide updates as available. If you have any questions or concerns on how the above may impact your foreign national employees, please contact your designated Meltzer Hellrung attorney or consulation@meltzerhellrung.com.

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Use of Alternative Wage Surveys

Posted November 2, 2020Stephanie Wedel - Sr. AssociateArticles

The recently published  Department of Labor (DOL) Interim Final Rule has caused a substantial increase in the prevailing wages used for PERM, H-1B, H-1B1 and E-3 petitions. When filing an LCA or Prevailing Wage Request employers can make use of wage surveys in lieu of the data from the Bureau of Labor Statistics in the OES (found online at flcdatacenter.com).

The Department of Labor will certify an LCA or Prevailing Wage Request relying on a wage survey if the survey meets the following requirements:
  • Survey methodology: The wage survey must include detailed information about the survey methodology, including sample size and source, sample selection procedures, and survey job descriptions.
  • Published within 24 months of submission: Not only must the survey have been published within 24 months of use, but the data used must have been collected within 24 months of the survey’s publication. It must also be the most recent edition of the survey, even if previous editions were published within the last 24 months.
  • Arithmetic mean/median: The wage used must be the arithmetic mean – the average of wages paid within the survey group. A median (middle value in the ranges) can be used if the mean is not published.
  • Cross-industry data: The data collected must be collected from all industries that employ workers in the occupation.
  • Area of intended employment: The data collected must come from “within a normal commuting distance” from the address of intended employment. This area can be expanded if it is demonstrated that there are less than 30 workers in the original area.
  • Similar job descriptions: The job descriptions in the survey must align with the offered position and not be in a completely different occupation.
  • At least 3 employers and at least 30 workers surveyed.

Using a survey does not increase the processing timelines for the prevailing wage request or labor condition application (LCA). There are, however, additional fees that are incurred in order to obtain these surveys.  In some cases, employers are already subscribed to a valid survey for their own internal compensation reviews, and these can also be used for PERM, H-1B, H-1B1 and E-3 petitions so long as they meet the above criteria.

Please reach out to your designated Meltzer Hellrung attorney or consultation@meltzerhellrung.com with any questions.

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Department of State Proposes Elimination of “B-1 in Lieu of H” Visa Classification

Posted November 2, 2020Articles

Background:

In late October, the Department of State submitted a proposal recommending the removal of the B-1 in lieu of H visa category.  Typically, B-1 visas do not allow the visa holder to perform productive work in U.S.  The B-1 in lieu of H allows individuals who would be classifiable as H-1B or H-3 nonimmigrants to enter the United States temporarily to conduct specific and legitimate business activities while remaining employed abroad (i.e. remaining on foreign payroll).

Proposed Changes:

The Department of State has proposed to revise and/or remove certain definitions of business in the current regulation that would effectively remove the B-1 in lieu of H classification option to nonimmigrant visitors. If finalized, the rule would not invalidate any currently valid visas with this classification annotation; however, these visa holders would be subject to independent review by CBP officers at U.S. ports of entry, which could lead to additional scrutiny.

Next Steps:

The proposal will undergo a public commenting period for 60 days after which the Department of State will review the feedback and prepare to issue a final rule. Meltzer Hellrung will continue to monitor this matter and provide updates as they occur. We do not expect clients to experience much impact as this is not a commonly used visa category. Many consulates have been reluctant or unwilling to grant visas in these categories for years. Please reach out to your designated Meltzer Hellrung attorney or consultation@meltzerhellrung.com with any questions.

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Trump Administration‘s Public Charge Rule Vacated Nationwide

Posted November 2, 2020Jennifer Salviati - Sr. ParalegalImmigration Reform

UPDATE: The court's decision has been stayed. We are following this situation and will provide updates as they become available. 

On November 2nd, a federal court in Chicago found that the Trump Administration’s public charge rule violates the Administrative Procedure Act because it exceeds the Department of Homeland Security’s (DHS) existing authority on the issue of the public charge question, that the rule is arbitrary and capricious and is not in accordance with law. The Public Charge Rule was a sweeping and unprecedented policy forcing intending immigrants to disclose extensive personal and financial information and any prior use of public benefits for the purposes of determining whether applicants were “fiscally fit” enough to receive immigration benefits.

What this means:

The court’s ruling in Cook County, Illinois, et al v. Wolf et. al., (19-cv-6334) vacates (sets aside) the DHS public charge rule, nationwide. As a result, as of November 1st, 2020,  DHS is forbidden from applying the public charge rule and may not solicit the information or documentation previously required to be provided on and in conjunction with USCIS’ recently- introduced Form I-944, Declaration of Self Sufficiency. Furthermore, Form I-944 will no longer be required when applying for Adjustment of Status.

The Court additionally approved continuing litigation of the issue of whether the public charge rule violates the equal protection component of the Fifth Amendment’s Due Process Clause.

Our recommendations:

While the ruling prevents DHS and USCIS from requiring the Form I-944, we recommend preparing to provide this information for any upcoming adjustment of status applications, as courts in the past have narrowed these rulings to local areas. 

Meltzer Hellrung continues to monitor and assess the effect of this ruling and any subsequent litigation on the interests of our clients. If you have any questions or concerns on how the above may impact your foreign national employees, please contact your designated Meltzer Hellrung attorney or consulation@meltzerhellrung.com.

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Update on PERM Processing Times and November Visa Bulletin

Posted October 30, 2020Kristen Kellar - Sr. Paralegal - Team LeadVisa Bulletin

PERM

The Department of Labor reports that PERM processing times are approximately five to six months. Cases that are currently being adjudicated have a Priority Date of April 2020.

Cases that are under Audit Review have a longer processing time of over 300 days. Cases currently being adjudicated in Audit Review have a Priority Date of December 2019.

You can check for updates to the current processing times on the Department of Labor website by clicking here.

 

November Visa Bulletin

The updated Visa Bulletin for November 2020 has been released. The new bulletin sees various advancements in the Final Action dates for employment-based cases, but remains the same for Dates for Filing employment-based cases. See the full bulletin here.

Individuals seeking to file applications for adjustment of status with USCIS may use the “Dates for Filing Applications” for determining when they can file such applications.

 

Final Action Changes

All Chargeability (all countries except those otherwise listed):

  • All employment-based preferences are current

China:

  • EB1 advance to 01DEC18
  • EB2 advance to 22APR16
  • EB3 advance to 01OCT17

EL Salvador, Guatemala, and Honduras:

  • EB1, EB2, and EB3 and other workers are current

India:

  • EB1 advance to 01DEC18
  • EB2 advance to 22SEP09
  • EB3 and other workers advance to 01MAR10

Mexico, Philippines, and Vietnam:

  • EB1, EB2, and EB3 and other workers are current

 

Dates for Filing Changes:

All Chargeability (all countries except those otherwise listed):

  • All employment-based preferences are current

China:

  • EB1 remains at 01SEP20
  • EB2 remains at 01OCT16
  • EB3 remains at 01JUN18

EL Salvador, Guatemala, and Honduras:

  • EB1, EB2, and EB3 and other workers are current

India:

  • EB1 remains at 01SEP20
  • EB2 remains at 15MAY11
  • EB3 and other workers remain at 01JAN15

Mexico and Philippines:

  • EB1, EB2, and EB3 and other workers are current


Each month Meltzer Hellrung will reach out to clients who are eligible to apply for adjustment of status. If you have any questions about eligibility please reach out to your designated Meltzer Hellrung attorney.

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