New H-1B and Prevailing Wage Regulations

As you may know, USCIS implemented new regulations on the H-1B process, and the DOL implemented new regulations on the Prevailing Wage process. While there is at least one Court Case pending seeking an injunction on both of these regulations, it is still worthwhile going through the major changed made by both these regulations

Prevailing Wage Regulations

First, in terms of the Prevailing Wage regulations, the simple result is that the prevailing wage will be going up quite a bit. The old system used the 17th percentile for level one. The new one uses the 45th percentile – quite a difference and resulting in higher wages for low-level workers. It should be noted that private wage surveys can still be used to show that the DOL Prevailing Wage is incorrect.

It is interesting to note that in justifying this increase, USCIS cites only one report – and that one report sites to only one instance where the current prevailing wage model MAY provide a wage lower than that actually prevailing in a given geographic area (and I say may because the example is not very clear nor does it seem to actually provide the correct information).

H-1B Regulations

For the H-1B regulations, there are several major changes.

  1. There will now have to be a direct relationship between the field of the degrees and the duties: While this may not sound restrictive, it is. This is USCIS’s way of trying to require sub-specialization. In other words, for example, you cannot say that a position would require an engineering degree – you would need to specify the specific engineering degree (mechanical, electrical, etc.) and show how that relates to the duties – same if you say that more than one such specialization would be ok – you need to show how each degree relates to the duties. General degrees are no longer acceptable as well
  2. Bachelor’s degree is always required: No longer can just show that it is usually required for the occupation/position, but you must show that it is always required for entry into the occupation or position. So positions that are listed as “usually” or “normally” requiring a bachelor’s will no longer be sufficient. Likewise,
  3. Provides a new definition of US Employer: This definition, among other things, will define the employer-employee relationship. It will allow USCIS to weigh the various factors as they will actually be in the position – in other words, the question is not whether the employer has the “right” to control the employee or the “right” to provide the instruments or tools for the employee to work, but whether the employer does or will actually do such things in the real world. It also lists additional factors they will look at to show that the person is actually being supervised by the sponsor and not another party.
  4. Contracts: Third-party placement will require contracts and will only be good for 1 year or the length of the contract – whichever is shorter. Also, the contract needs to list the requirements of the position as imposed by the third-party.
  5. Site Visits: If the third party refuses to allow a site visit, USICS can (and most likely will) deny or revoke the H-1B.

The above are the major, but by no means all, the changes made by the regulations. Many of the above changes were attempted by USCIS through various policy memorandum. However the Courts clearly stated that they could not make such changes via memo, so now USCIS is seeking to make those changes via regulations.

Lastly, it should be noted that both these regulations are currently in effect. USCIS and the DOL felt that they were of such importance that they required immediate implementation, forgoing the usual comment and revision period.

If you are affected by any of these changes, please set up a time to talk with me via the links on this webpage. We are happy to discuss how these regulations may impact you and ways to prevent such impacts.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

BREAKING: District Court Enjoins USCIS New Fee Rule

Today the US District Court for the Northern District of California enjoined DHS and USCIS from putting their new Fee rule into effect on October 2, 2020. The Court agreed with the plaintiffs that it was more likely than not that they would succeed plaintiffs their case showing that the acting Directors of DHS and USCIS lacked the authority to make new regulations or rules as they have never been confirmed by Congress.

The court made this a nationwide ruling – meaning that USCIS cannot put the new rule in place anywhere in the US. According to the Court because it was likely that they could show that the Acting Directors lacked the power, a nationwide injunction.

While the Government can still appeal to the Court of Appeals and/or the Supreme Court, at least for now, the new rule cannot go into effect.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

USCIS New Public Charge Rule and I-944 Form Back in Force

On September 11, 2020, the Second Circuit Court of Appeals limited the scope of the preliminary injunction on the USCIS new public charge rule issued by the New York State District Court. The Court of Appeals changed the injunction from nationwide to only applying to New York, and two other states in the jurisdiction of the Court (it was a little more complicated than that, but this was the result). When the New York District Court first entered its nationwide injunction, USCIS immediately stopped enforcement of the new rule and no longer required the new I-944 form. Because of the ruling of the 2nd Circuit Court of Appeals, there was speculation that USCIS would re-implement that rule. It took two weeks, but USCIS has finally re-implemented the public charge rule. In a statement put out yesterday, USCIS indicated that any case filed since the new rule was put out and before October 13, 2020, that did NOT include the I-944 and/or supporting documents would be issued a Request For Evidence for the documentation. Come October 13, 2020, however, any case received by USCIS without the I-944 and supporting documents would be rejected.

For those not familiar with the new rule, USCIS changed its longstanding public charge rule to expand the types of public support that could affect the ability of someone to show that they would not likely become a public charge. In addition, USCIS greatly expanded the documents required for it to make a determination on whether someone would become a public charge. Under the new rule, a new form, the I-944 form, was required for immigrants which required information on all assets and liabilities for each applicant as well as proof of health insurance, marketable skills, language skills, and credit score and report. Once USCIS had all the required information and documents it would balance the positive and negative factors to determine if it felt someone would likely become a public charge. In addition to the above, many of the non-immigrant forms also now include certain questions on public charge issues as well.

We will update you with any other changes or update to this rule. And remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

Biden wants to Roll Back the Immigration Policy changes made by Trump. Will that be possible in his first four years?

There was a recent, very interesting article published by NPR that highlighted the problems that may be faced by the Biden administration (if he wins the election) in rolling back the changes implemented by the Trump administration. You can read the full article here.

While there were several possible barriers raised by the article that could stand in Biden’s way of changing such immigration policies, the biggest, and hardest barrier to break through, in my mind, is the culture that has been created at USCIS, ICE, CBP and other related agencies. According to the article:

“That isn’t something that’s a light switch. You can’t change culture within an organization that vast overnight,” says Angela Kelley, senior adviser to the American Immigration Lawyers Association. “So I agree that it’s going to be a long, long road.” 

CBP produced an ominous, fictionalized video on the Border Patrol’s YouTube channel that depicts a Latino migrant who had just escaped from agents, attacking and knifing a man in a dark alley. The video was released at a time when Trump has been stoking fears about violent immigrants at his campaign rallies. For an example of how the Border Patrol is marching lockstep with the White House, look to a video titled “The Gotaway,” posted earlier this month. 

NPR inquired why the video was made and why it was removed a week later before being re-posted. Border Patrol Chief Rodney Scott said in a statement that the video was produced “to enhance awareness that effective border security helps keep all Americans safe,” and it was briefly pulled because they misused copyrighted materials.

NPR, Morning Edition, September 14, 2020

Changing such a culture will take time. While changing those at the top will help change the policies the officers act under, getting those changes to be implemented by officers, and getting them to change their attitudes will take quite a while, especially at ICE and CBP. USCIS may be somewhat easier to crack as the officers there are not dealing with deportation or apprehending people on a daily basis and are not necessarily as hard lined (although, most likely, some are as well). Changing the policies at USCIS may be enough to allow officers to change the way they adjudicate cases without to much time passing.

Again, according to the article:

“I don’t think it’s realistic that Biden in four years could unroll everything that Trump did,” says Sarah Pierce, a policy analyst at the Migration Policy Institute, a nonpartisan think tank in Washington, D.C. 

“Because of the intense volume and pace of changes the Trump administration enacted while in office, even if we have a new administration, Trump will continue to have had an impact on immigration for years to come,” Pierce says.

NPR, Morning Edition, September 14, 2020

While, overall, it may take a long time to affect all these changes, I do think, that there are some basic policies that could be changed much quicker (in terms of USCIS). First, the requirement of an interview for all cases – that could be changed very quickly. In addition, some of the more hardline looks at H-1Bs could also be changed rather quickly, as could the removal of harmful Executive Orders that limit immigration. So there is a lot that could be done relatively quickly as well.

We must also remember, that, if Biden is able to get Congress on his side as well, and a new immigration law is passed, that could significantly increase the rate at which changes can be made both inside USCIS as well as inside ICE and CBP (if such a law limits their jurisdicition and ability to act inside the law).

Overall, it could take longer for many changes, especially those at the border to be fully put in place. While some changes, those that primiarily are implemented by USCIS, may be able to be implemented earlier. We shall see what happens in November and what happens in January, should there be a change of administration.

Possible new H-1B Regulations to Limit H-1Bs

It appears that the current administration will soon have USCIS issue a new regulation regarding H-1Bs.  There are three elements of the new regulation that are the most significant: 

1) The regulation will be published as an “interim final rule,” which would allow it to go into effect immediately without public input but also makes the rule more vulnerable to legal challenge;

2) The regulation will impose a new, restrictive definition of a “specialty occupation” for H-1B visa holders; and

3) The rule will make it more difficult for H-1B professionals to conduct work at third-party customer locations. 

The first part is making it an “interim” final rule.  The purpose for this is that it allows the rule to go into effect BEFORE comments are received, meaning that it will go into effect immediately upon being published.  The only real silver lining is that this also makes it more susceptible to challenge in the courts as the administration would have to justify skipping public comment (while the argument is it is not skipping it, just allowing the rule to go into effect first, in my mind it is the same as skipping public comment). 

The second part, the new definition of “specialty occupation” was not spelled out in the summary provided to the news sources.  However, most likely, it will be in line with the recent court cases that USICS lost in which it tried to limit the scope of specialty occupation to only occupations that ALWAYS require a bachelors degree, as opposed to those that USUALLY require a bachelors degree.  In addition the administration has also tried to limit H-1Bs to positions that only require a specific degree, as opposed to several degrees.  There are two situations that this comes into play:  First, when a so called “general” degree is required when there are specialty degrees in that area (for example, requiring an engineering degree as opposed to a mechanical engineering degree); The second is if the position could be filled by someone with, for example, a degree in Computer Science or Information technology.  USCIS has tried to limit both types by saying that they are not specialty occupations (but they have lost in Court in all those cases). 

Lastly, USCIS will most likely be trying to limit placement of H-1B employees of IT firms at other locations, as those have been the big cases in the news with H-1B violations.  However this could affect more than just IT companies, depending on the exact regulation.  USCIS has, in the past, tried to get itineraries and firm contracts for the entire period of the H-1B, which can be difficult for some companies that have the need for the person, but they are working on various contracts, etc. as needed.  USCIS may not accept them if the person is not specifically mentioned (something they attempted to do on some occasions as well). 

We will have to see what the final rule states, but it seems as though the current administration is going to try to ensure that the H-1B program has limited use in the near future.  We will update you as we learn more.

DHS Looking at Expanding Use of Biometrics as well as adding new Biometrics

DHS this week indicated that it was going to propose a rule expanding the use of biometrics in immigration cases. Currently, in cases in which background checks are required, DHS (and, by extension USCIS) requires biometrics (fingerprints and photos at this point) to be taken at the Application Support Centers across the US. The new rule would allow USCIS to begin capturing biometrics for ANY and all immigration cases it deems fit. In addition, it would expand the biometrics that are allowed to include DNA samples, iris scans, and any new technologies developed. Also (as if the above was not enough) the new rule would also remove any age limit on such collection (currency those under 14 do not have to have biometrics taken).

First, it is important to note that USCIS charges for taking biometrics. Most likely, if there are more types of biometrics being taken, that fee will go up and more people will be forced to pay for it. Second, no real reason was given for the increase in biometrics. Most likely it will be stated that they are trying to fight against fraud, etc. however there has certainly been no increase in immigration fraud and it remains extremely rare. Expending so much time and effort to fight something so small seems counter-intuitive. It seems much more likely that they feel such measures, especially the capturing of DNA information, will put up more barriers to people seeking to immigrate to the US. Unfortunately, this will affect ALL immigrants and non-immigrants who will be forced to pay for and give more biometrics information. It may also affect US Citizens who could be forced to give DNA information as well if they are sponsoring certain immigrants (to prove relationship). Again, USCIS already requires DNA samples in cases in which there is a likelihood of fraud (either the documentation submitted makes it appear as such or the Country in question has a record of allowing fraudulent documents). Why they need to expand this ability to other cases in which there is NO indication of fraud does not make sense. This is similar to the expansion of immigration interviews to ALL cases (when it use to be mainly used just for family-based cases). In the case of interviews, the explanation given was also to counter fraud (when there was very little fraud in employment-based cases to begin with). This policy has been put in place for several years now, however, there has been NO change in the number of fraudulent cases and no evidence that the policy has done anything to help in cutting down fraud. The problem with both these cases is, as stated above, that the goal seems more to slow down the process or frighten people off from using the process than it does to look for and weed out fraud.

In addition to the above, this would also add even more barriers to an already overtaxed agency to carry out its mission and resolve cases in a reasonable period of time. Timelines for cases have been steadily increasing and adding in the need to take more and more biometrics will slow down the process even more, creating bigger backlogs.

Here is the link to the news article that broke the story, which has since been picked up by others in the press:

https://www.buzzfeednews.com/article/hamedaleaziz/trump-immigrant-biometric-info-applications

Time will tell whether the current administration will actually be able to implement the policy and, even if they do, whether the next administration will continue the policy.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

New Executive Order and Possible Furloughs at USCIS

executive_order__1_The US President issued a new executive order on Monday evening.  The order did several things.  First, it extended the April 22, 2020 order limiting the ability for those overseas to get immigrant visas.  Second, it expanded that order to include certain non-immigrant visas as well.  Lastly, it required USCIS and DOL to review processes and procedures regarding EB-2 and EB-3 cases.    Before providing a summary of the provisions, there are a couple points to highlight.

First, and most importantly, the non-immigrant visa suspensions affect only those NOT IN THE United States.  This is also true of the immigrant visa suspension.  Second, the J-1 visa suspension does NOT include all categories of J visas.  For example, the Research Scholar category, and the Visiting Scholar categories are NOT included in the suspension.  Lastly, those outside the US with a currently VALID H-1B visa may still be able to return on that visa as the suspension only halts the issuance of new visas.  Here is a slightly more expansive summary of the provisions:

On June 20, 2020, President Trump has issued a proclamation that suspends the entry of foreign nationals on certain employment-based nonimmigrant visas into the United States.

This Proclamation also extends, effective immediately, Presidential Proclamation 10014 issued on April 22, 2020 which suspended the entry of certain immigrants into the United States.

The Proclamation suspends the issuance of visas for those seeking entry pursuant to a(n):

  • H-1B visa and any foreign national accompanying or following to join them;
  • H-2B visa and any foreign national accompanying or following to join them;
  • J visa, to the extent the foreign national is participating in an intern, trainee, teacher, camp counselor, au pair, or summer work travel program, and any foreign national accompanying or following to join them; and
  • L visa, and any foreign national accompanying or following to join them.

The Proclamation will only apply to an individual identified above if they are:

  • Outside the United States on the effective date of the Proclamation;
  • Do not have a nonimmigrant visa that is valid on the effective date of the Proclamation; and;
  • Do not have an official travel document other than a visa (such as a transportation letter, boarding foil, or advance parole document), valid on the effective date of the Proclamation or issued thereafter permitting the individual to be admitted to the United States.

Exemptions:

The Proclamation will not apply to the following individuals:

  • lawful permanent residents;
  • spouse or child of a U.S. citizen;
  • any individual seeking entry to provide temporary labor essential to the U.S. food supply chain;
  • any individual whose entry would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.

For the purposes of determining who is covered under the “national interest” exemption, the Proclamation directs the Secretaries of State, Labor, and Homeland Security to determine standards for those to whom such an exemption would be available, including any individuals who:

  • are critical to the defense, law enforcement, diplomacy, or national security of the United States;
  • are involved with the provision of medical care to individuals who have contracted COVID-19 and are currently hospitalized;
  • are involved with the provision of medical research at U.S. facilities to help the United States combat COVID-19;
  • are necessary to facilitate the immediate and continued economic recovery of the United States; or
  • are children who would age out of eligibility for a visa because of this proclamation or Proclamation 10014.

Discretion: The consular officer has discretion to determine if an individual is within one of the exempted categories outlined above.

Asylum Seekers: Asylum seekers are not included in the ban. The Proclamation states that it does not limit the ability of individuals to apply for asylum, refugee status, withholding of removal or protection under the Convention Against Torture.

Fraud: Individuals who circumvent the application of the Proclamation through fraud, willful misrepresentation or illegal entry will be prioritized for removal.

Additional Review: Within 30 days of this Proclamation’s effective date, and every 60 days after, while it and Proclamation 10014 are in effect, the Secretary of Homeland Security, in consultation with the Secretaries of Labor and State will make a determination as to any need to modify either proclamation.

COVID-19 Prevention: The Secretary of Health and Human Services will provide guidance to the Secretaries of State and Homeland Security concerning measures that will reduce the risk of those seeking admission to the United States introducing or spreading COVID-19 within the country. It is our understanding that this means individuals will be subject to a COVID-19 test before arrival.

Additional Measures:

  • Issue regulations or take additional actions to ensure that those who have already been admitted, or are seeking admission, on an EB-2 immigrant visa, EB-3 immigrant visa, or H-1B nonimmigrant visa do not limit opportunity for U.S. workers.

 

In addition to the above, USCIS announced that their revenues are down over 50% and that, unless Congress allocates more funding to the agency they will be required to furlough almost 70% of their staff, causing huge delays in adjudications if it were to occur.

If you have any questions, or wish to discuss the above, please do not hesitate to call or email me. And please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

Premium Processing Resuming

UnknownUSCIS announced last week that it was resuming premium processing as of June 1, 2020.  However, USCIS stated that it would phase in the ability to file premium processing on cases in order to ensure that the office was not inundated with new premium processing cases before it was fully up and running again.  To that end, USCIS announced the following schedule for getting Premium Processing back up and running:

June 1:   Premium Processing for all I-140s will begin

June 8:   All non-H-1B I-129 application filed prior to June 8th that are eligible for premium processing can be upgraded as well as cap-exempt H-1Bs filed prior to June 8th.

June 15:   All statutorily cap-exempt application filed on or after June 8th

June 22:   All I-129 and I-140s eligible for premium processing (i.e. normal premium processing resumes)

So, as of today, I-140s can be upgraded to premium processing (or I-140s just being filed can be filed as premium processing).  Please do remember that not all I-140s are eligible for premium processing. Specifically those filed as a National Interest Waiver, or as an Intra-Company transferee are NOT eligible for premium processing.

In terms of I-129 application, there are more exceptions there as well.  If you are unsure if your application is eligible for premium or if you require assistance in upgrading your application, please do not hesitation on contactingour office.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

USCIS Update on Office Closures due to Covid-19

960x0USCIS has issued an update regarding office closures due to the Covid-19 pandemic.  USCIS is preparing to reopen CERTAIN offices starting June 4, 2020.  To see if your local office is opening you can go to this page.

As USCIS re-opens they have put out a list of precautions they are taking:

Beginning June 4, 2020, certain USCIS field offices and asylum offices will resume non-emergency face-to-face services to the public. Application support centers will resume services later. USCIS has enacted precautions to prevent the spread of COVID-19 in reopened facilities:

  • Visitors may not enter a USCIS facility if they:
    • Have any symptoms of COVID-19, including cough, fever or difficulty breathing;
    • Have been in close contact with anyone known or suspected to have COVID-19 in the last 14 days; or
    • Have been individually directed to self-quarantine or self-isolate by a health care provider or public health official within the last 14 days.
  • Visitors may not enter the facility more than 15 minutes prior to their appointment (30 minutes for naturalization ceremonies).
  • Hand sanitizer will be provided for visitors at entry points.
  • Members of the public must wear facial coverings that cover both the mouth and nose when entering facilities. If they do not have one, USCIS may provide one or the visitor will be asked to reschedule their appointment.
  • There will be markings and physical barriers in the facility; visitors should pay close attention to these signs to ensure they follow social distancing guidelines.
  • Individuals may also have to answer health screening questions before entering a facility.
  • Individuals are encouraged to bring their own black or blue ink pens.

Appointment notices will include further instructions for visiting USCIS facilities. For more information, see the web alert.

Please note, not all offices will be re-opening at once, and, as the above mentions, Application Support Centers, where most biometrics are taken, will be opening at a later date.

Any questions, please call our office.  Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

HHS expands J-1 Waivers for Clinical Care Physician

Doctor and patient high fiving in officeThe Department of Health and Human Services has a program to grant J-1 2 year home residency waivers for clinical care physicians.  Under this program, the physician must be working in a Federally Qualified Community Health Centers (CHC), as designated by the government.  Because of the current pandemic, however, and the great need for primary care physicians, HHS has decided to expand the pool of doctors eligible to apply for a waiver through HHS (this does NOT affect eligibility for such a waiver through a state HHS agency).

Under the revised rules, any facility, such as a hospital or private practice, can apply for an HHS waiver as long as they have an HSPA score of at least 7 and the physician will provide primary care treatment. HPSA scores are developed by the National Health Service Corps to determine the areas in most need of assigned physicians. The higher the score, the greater the need. Primary care and mental health clinicians are scored between 1-25. The waiver is not available for specialists but for extremely limited exceptions for those with a 1 year fellowship in a primary care field, such as geriatrics.

Those interested in the requirements for a clinical care waiver request, they can be found under the Supplement B section on the HHS website here.  If you are interested in determining if you would qualify for such a waiver, or to get more information, you can also contact me at adam.frank@fdimmigration.com.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.