H-1B "cap" reached for FY 2022

U.S. Citizenship and Immigration Services (USCIS) announced on March 30, 2021 that it has received a sufficient number of H-1B petitions to reach the statutory H-1B visa “cap” for fiscal year (FY) 2022. 

The USCIS announcement states:

We randomly selected from among the registrations properly submitted to reach the cap. We have notified all prospective petitioners with selected registrations that they are eligible to file an H-1B cap-subject petition for the beneficiary named in the applicable selected registration.

Registrants’ online accounts will now show one of the following statuses for each registration (that is, for each beneficiary registered): 

• Submitted: The registration has been submitted and is eligible for selection. If the initial selection process has been completed, this registration remains eligible, unless subsequently invalidated, for selection in any subsequent selections for the fiscal year for which it was submitted.

• Selected: Selected to file an H-1B cap petition.

• Denied: Multiple registrations were submitted by or on behalf of the same registrant for the same beneficiary. If denied as a duplicate registration, all registrations submitted by or on behalf of the same registrant for this beneficiary for the fiscal year are invalid.

• Invalidated-Failed Payment: A registration was submitted but the payment method was declined, not reconciled, or otherwise invalid.

…

H-1B cap-subject petitions for FY 2022, including those petitions eligible for the advanced degree exemption, may be filed with USCIS beginning April 1, 2021, if based on a valid, selected registration.

Only petitioners with selected registrations may file H-1B cap-subject petitions for FY 2022, and only for the beneficiary named in the applicable selected registration notice.

In the 2020 (FY 2021) season, a second selection process took place in August to make unused H-1B visas available. USCIS has not yet announced when such a second selection might take place in 2021 (FY 2022).

© Jewell Stewart & Pratt PC 2021

U.S. Immigration & Travel Updates - March 2021

Last updated: 03/12/2021

Disclaimer: Any foreign national considering international travel should have an attorney review the particular circumstances of their case as there are currently several “bans” in effect.

It is not yet known for how long the Biden Administration intends to keep COVID-19 geographic travel restrictions or the nonimmigrant (H/L/J) visa issuance bans (currently expiring March 31, 2021) in place, or, if the bans are lifted, how the Embassies will process visas given COVID-19 safety restrictions.

Following is a list of recent updates:

• Public Charge or “Wealth Test”: On March 9, 2021, DHS issued a statement saying that “continuing to defend the final rule, Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41,292 (Aug. 14, 2019) (2019 Rule), is neither in the public interest nor an efficient use of limited government resources. Consistent with that decision, the Department of Justice will no longer pursue appellate review of judicial decisions invalidating or enjoining enforcement of the 2019 Rule.” On March 10, USCIS updated its website to note that the Form I-944, Declaration of Self-Sufficiency, is no longer required for Adjustment of Status filings, and that any information included or required on forms related to the 2019 rule will be disregarded. USCIS is reverting to its 1999 guidance when making inadmissibility determinations regarding public charge.

• Temporary Protected Status (“TPS”) for Venezuela and Burma: DHS designated Venezuela and Burma for TPS, which means that eligible Venezuelans and Burmese may apply for TPS and an employment authorization document (“EAD” or “work permit”) until September 2022.

• F-1 OPT EADs: USCIS announced certain flexibilities for F-1 students experiencing receipt delays or rejections on their OPT EAD applications, allowing for a full 12-month OPT EAD period and allowing re-filing of certain cases that were previously rejected, or re-issuance/correction of certain EADs that were shorted. USCIS also announced that it will not reject applications with missing or deficient signatures and will instead issue a “Request for Evidence” so that applicants may correct the errors.

• E-3 Visas: USCIS’s Premium Processing Service is now available for E-3 (Australian) change of employer and extension of status petitions.

• Civics Test: USCIS has reverted to using the 2008 version of the Civics Test for citizenship (naturalization) applications.

• H-1B Cap: The H-1B Cap for FY 2022 will be a random lottery; the registration period will run from March 9-25, 2021.

• CDC Testing Requirement for Air Arrivals: In a CDC order dated January 26, 2021, airlines are required to deny boarding to the U.S. to anyone who cannot produce negative test results within 3 days of the planned flight. The testing requirement applies to all entries, including U.S. citizens and Lawful Permanent Residents or persons who are vaccinated.

• Immigrant Visa Ban: On February 24, 2021, President Biden rescinded the Immigrant Visa Ban. The Nonimmigrant (H/L/J) visa ban remains in place until March 31, 2021 (or until rescinded or extended).

• COVID Travel Bans for Europe, China, Iran, Brazil, and South Africa: On January 25, 2021, President Biden issued an Proclamation keeping the geographic COVID bans in place, and adding South Africa to the list of banned areas (because of the COVID variant there). These bans are to be reviewed at the end of each month. On March 2, 2021, the Department of State announced a change to the “National Interest Exception” standard, which allows for a waiver of the COVID ban for persons in Europe if the applicant is “seeking to provide vital support for critical infrastructure.” F-1/M-1 students also remain excepted, and NIEs remain available for humanitarian travel, public health response, and national security.

Reminder: Changes are rapidly evolving and may not be immediately posted here.

© Jewell Stewart & Pratt PC 2021

Biden Administration's U.S. Immigration & Travel Updates - January/February 2021

Updated 02/02/2021

Disclaimer: Any foreign national considering international travel should have an attorney review the particular circumstances of their case as there are currently several “bans” in effect.

It is not yet known whether the Biden Administration intends to keep COVID-19 geographic travel restrictions or the visa issuance bans in place long-term, or, if the bans are lifted, how the Embassies will process visas given COVID-19 safety restrictions. More executive actions are expected in the coming days.

Executive Actions:

On February 2, 2021, President Biden signed three Executive Orders establishing a taskforce for reuniting families separated at the border, reviewing asylum and related polices at the border, and ordering agency reviews of Trump immigration policies.

On January 25, 2021, President Biden issued an Executive Order titled “Ensuring the Future is Made in All of America with All of America’s Workers,” which, among other provisions, revokes the previous administration’s “Buy American and Hire American” policy which caused nonimmigrant visa petitions and applications to be heavily scrutinized, resulting in denials and “Requests for Evidence” (RFEs) as well as additional impediments added to existing applications, such as the “public charge” rule changes.

On January 20, 2021, the Biden Administration issued several Executive Actions related to immigration, including but not limited to:

• Protecting DREAMers and creating a pathway to citizenship (memorandum is here);

• Reversing the Muslim ban and ordering U.S. Embassies and Consulates to issue visas to applicants who were otherwise eligible for issuance but for the Muslim ban (text of order available here);

• Revocation of certain interior enforcement policies, including USCIS’s NTA issuance policy and ordering a 100-day pause on certain removals/deportations (Executive Order is here; DHS memorandum is here); and

• Stopping border wall construction (text of Presidential Proclamation is here).

Additional Executive Actions related to immigration are expected in the coming days.

Regulatory Freeze: On January 20, 2021, the White House Chief of Staff issued a regulatory freeze memo pausing any “midnight” regulations from taking effect until the incoming Administration is able to review them. In addition, many regulations proposed by the prior administration were never finalized and will not go forward, including H-4 EAD rescissions, biometrics requirements for U.S. citizen sponsors, elimination of duration of status for students, exchange visitors, and media, and additional affidavit of support requirements.

CDC to Require Negative COVID Test for ALL U.S. Air Arrivals Starting 1/26/2021: In a CDC order issued January 12, 2021 and taking effect January 26, 2021, airlines will be required to deny boarding to the U.S. to anyone who refuses a test or cannot produce negative test results (or a certificate of recovery from COVID-19) within 3 days of the planned flight. The testing requirement applies to all entries, including U.S. citizens and Lawful Permanent Residents, even if testing is not readily available in the location where the traveler is departing from. U.S. Embassies will not be available to provide/arrange testing. On January 21, 2021, the Biden Administration ordered a 14-day review of travel policies as they relate to COVID.

COVID Travel Ban for Europe, China, Iran, Brazil, and South Africa: On January 25, 2021, President Biden issued an Proclamation keeping the geographic COVID bans in place, and adding South Africa to the list of banned areas (because of the new COVID variant there), at least through the 14-day review period mentioned above.

U.S. Citizenship Act of 2021: On January 20, 2021, the Biden Administration posted a Fact Sheet for a bill that President Biden sent to Congress. The bill calls for, among other things:

• A pathway to citizenship for undocumented individuals physically present in the U.S. on or before January 1, 2021 (including certain previously removed/deported persons) including a temporary status with ability to apply for a green card (permanent residency) in five years, and three years thereafter, to file an application for citizenship;

• Reforming the family-based immigration system, including clearing backlogs, using unused visa numbers, increasing per-country caps, eliminating the three- and ten-year bars, among other provisions; and

• Reforming the employment-based immigration system, including clearing backlogs, reducing processing times, eliminating per-country caps, make it easier for STEM graduates to remain in the U.S., provide work authorization for H-4 spouses, etc.

At this time, this is merely a bill and must be passed into law by Congress to have any effect.

Reminder: Changes are rapidly evolving and may not be immediately posted here.

© Jewell Stewart & Pratt PC 2021

U.S. Immigration & Travel Restrictions - January 2021 Updates

Updated 01/19/2021 - see our latest post for updates as of 1/20/2021

Disclaimer: Any foreign national considering international travel should have an attorney review the particular circumstances of their case as there are currently several “bans” in effect.

CDC to Require Negative COVID Test for ALL U.S. Air Arrivals Starting 1/26: In a CDC order issued January 12, 2021 and taking effect January 26, 2021, airlines will be required to deny boarding to anyone who refuses a test or cannot produce negative test results within 3 days of the planned flight. Geographic COVID travel bans also remain in place.

COVID Travel Ban for Europe, China, Iran, Brazil: Arrival restrictions for persons present in Europe (Schengen, U.K., Ireland), China, Iran, or Brazil (“COVID travel ban”) are continuing until cancelled or modified. Certain national interest exemptions are available for the European COVID ban. Note that due to Embassy closures and differences in how Embassies are interpreting the bans, the COVID ban is creating a de facto visa ban in many cases. On December 25, 2020, the CDC issued a requirement for a negative COVID test for all arrivals from the United Kingdom.

On January 18, 2021, the Trump administration issued a Proclamation ending the Schengen/U.K./Ireland/Brazil COVID-based entry restrictions on January 26, presumably to coincide with the CDC testing requirement going into effect that day. It is not yet known whether the Biden Administration intends to keep geographic travel restrictions in place.

Visa Ban: On December 31, 2020, the Trump administration extended the visa issuance bans to March 31, 2021. The Biden transition team has not yet specified which bans will be lifted and when. As detailed in our earlier blog post, Presidential Proclamations 10014 and 10052 affect the issuance of new/first-time H, L, and certain J visas, as well as certain immigrant visas applications, with some exceptions. Relatedly, the Trump administration’s health insurance ban may be back in play - we are updating our 2019 post on this here.

Closure of Land Ports of Entry (Canada & Mexico): U.S. Customs & Border Protection has extended the land border closure (with exceptions for essential travel) until at least February 21, 2021.

Phased Embassy Re-Opening: Routine visa issuance operations at U.S. Embassies and Consulates worldwide continue to be limited or suspended. On July 14, 2020, the Department of State announced a phased resumption of routine visa services which has been updated a few times; however, there continues to be no worldwide standard policy/procedure for visa appointment scheduling at this time.

USCIS and DOL Updates:

• Premium Processing Service: USCIS raised the PPS filing fee to $2,500 for cases received on or after October 19, 2020. For an update on potential future changes to PPS, see our post here.

• Public Charge: As of November 5, 2020, USCIS is once again permitted to enforce its public charge rule, e.g. the “wealth test.”

• Fee Changes: USCIS filing fee and form changes were enjoined by a District Court as of September 29, 2020.

• H-1B Rule: The administration is pushing forward with new rules on H-1Bs. The changes to prevailing wages went into effect on October 8, 2020 and was put on hold by a District Court on December 1, 2020. The restriction of the definition of “specialty occupation” is also now on hold by a District Court. On October 28, 2020, the administration released a proposed rule changing the H-1B registration from a random lottery selection to a wage-based selection process.

• Interviews/Appointments: On June 4, 2020, USCIS Field Offices started a phased re-opening process. Most employment-based adjustment of status interviews are being waived. Naturalization interviews are being prioritized. As interviews and in-person services are resumed, including fingerprints (biometrics), new notices will be mailed out to applicants. USCIS is checking CBP records and automatically rescheduling interviews if the applicant has traveled outside the U.S. in the last 14 days. USCIS Application Support Centers are still working to reschedule cancelled biometrics appointments; as of December 2020 the total biometrics backlog is approximately 1.3 million applications.

• Deadline Flexibility: In response to the COVID-19, USCIS will consider a response to an RFE, NOID, NOIR, and other requests and notices received up to 60 calendar days after the due date before taking any action. This flexibility applies if the issuance date listed on the request, notice, or decision is between March 1, 2020, and January 31, 2021, inclusive. See full announcement here.

• Service center operations remain mostly unchanged.

• Deferred Action for Childhood Arrivals (DACA): On Friday, December 4, 2020, a federal judge ordered the administration to fully re-implement the DACA program. The DACA program was upheld by the U.S. Supreme Court in June 2020.

U.S. Passport Agency: On August 3, 2020, the U.S. Passport Agency announced a phased re-opening. https://travel.state.gov/content/travel/en/passports.html

Form I-9 Completion During COVID-19: See our August post for further information. The I-9 flexibility provisions have been extended to January 31, 2021.

Reminder: Changes are rapidly evolving and may not be immediately posted here.

© Jewell Stewart & Pratt PC 2021

U.S. Immigration & Travel Restrictions - December 2020 Updates

Updated 12/07/2020

Disclaimer: Any foreign national considering international travel should have an attorney review the particular circumstances of their case as there are currently several “bans” in effect.

Deferred Action for Childhood Arrivals (DACA): On Friday, December 4, a federal judge ordered the administration to fully re-implement the DACA program. The DACA program was upheld by the U.S. Supreme Court in June 2020.

Visa Bulletin: The Department of State’s December Visa Bulletin is now available, and USCIS is accepting Dates for Filing for employment-based cases.

Visa Ban: As detailed in our earlier blog post, Presidential Proclamations 10014 and 10052 affect the issuance of new/first-time H, L, and certain J visas, as well as certain immigrant visas applications, with some exceptions. As of October 1, 2020, court decisions affected the ban as it relates to Diversity Visa (aka “green card lottery”) applicants and the plaintiffs of a NIV ban case. At this time, Department of State guidance requires that visa applicants have a relationship to one of the plaintiff organizations, such as the Chamber of Commerce. However, there does not appear to be a worldwide or standardized practice at visa-issuing posts; scheduling and issuances remain Embassy-by-Embassy. The ban is set to expire on 12/31 but may be extended.

COVID Travel Ban for Europe, China, Iran, Brazil: Arrival restrictions for persons present in Europe (Schengen, U.K., Ireland), China, Iran, or Brazil (“COVID travel ban”) are continuing until cancelled or modified. Certain national interest exemptions are available for the European COVID ban. Note that due to Embassy closures and differences in how Embassies are interpreting the bans, the COVID ban is creating a de facto visa ban in many cases. CBP/CDC airport health screenings and requirements to land at a CBP-designated airport ended on September 14, 2020, however the COVID-related travel bans for Schengen, U.K., Ireland, China and Brazil remain in place.

Closure of Land Ports of Entry (Canada & Mexico): U.S. Customs & Border Protection has extended the land border closure (with exceptions for essential travel) until at least December 21, 2020.

Phased Embassy Re-Opening: Routine visa issuance operations at U.S. Embassies and Consulates worldwide continue to be limited or suspended. On July 14, 2020, the Department of State announced a phased resumption of routine visa services. Some Embassies are showing appointment availability, and emergency appointments are available on a case-by-case basis at some Embassies, for non-banned categories, emergencies, and assistance with COVID ban waivers.

NPRM on Students and Media visas: On September 25, 2020, DHS issued a Notice of Proposed Rulemaking establishing a fixed time period for admission for students, exchange visitors, and representatives of foreign media. The rule would replace the “duration of status” admission period. The rule must now go through the usual “Notice and Comment” period; it is not final.

USCIS and DOL Updates:

• Premium Processing Service: USCIS raised the PPS filing fee to $2,500 for cases received on or after October 19, 2020. For an update on potential future changes to PPS, see our post here.

• Public Charge: As of November 5, 2020, USCIS is once again permitted to enforce its public charge rule, e.g. the “wealth test.”

• Fee Changes: USCIS filing fee and form changes were enjoined by a District Court as of September 29, 2020.

• H-1B Rule: The administration is pushing forward with new rules on H-1Bs. The changes to prevailing wages went into effect on October 8 and was put on hold by a District Court on December 1. The restriction of the definition of “specialty occupation” is also now on hold by a District Court. On October 28, the administration released a proposed rule changing the H-1B registration from a random lottery selection to a wage-based selection process.

• H-1B Cap: On August 14, 2020, USCIS ran an (unannounced) second lottery on existing H-1B cap registrations. The filing period for the newly selected registration cases is from August 17 to November 16, 2020.

• Interviews/Appointments: On June 4, 2020, USCIS Field Offices started a phased re-opening process. Most employment-based adjustment of status interviews are being waived. Naturalization interviews are being prioritized. As interviews and in-person services are resumed, including fingerprints (biometrics), new notices will be mailed out to applicants.

• Deadline Flexibility: In response to the COVID-19, USCIS will consider a response to an RFE, NOID, NOIR, and other requests and notices received up to 60 calendar days after the due date before taking any action. This flexibility applies if the issuance date listed on the request, notice, or decision is between March 1, 2020, and January 1, 2021, inclusive. See full announcement here.

• Service center operations remain mostly unchanged.

U.S. Passport Agency: On August 3, 2020, the U.S. Passport Agency announced a phased re-opening. https://travel.state.gov/content/travel/en/passports.html

Form I-9 Completion During COVID-19: See our August post for further information. The I-9 flexibility provisions have been extended to December 31, 2020.

Reminder: Changes are rapidly evolving and may not be immediately posted here.

© Jewell Stewart & Pratt PC 2020

DHS publishes proposed change to cap-subject H-1B visa petition processing: a wage-based selection system

On October 28, 2020, the Department of Homeland Security (DHS) announced a notice of proposed rulemaking (NPRM) that would change the way cap-subject H-1B petitions are processed. The announced change would, in years when demand for new H-1B visas exceeds the annual numerical cap, replace the current annual lottery process with a system that prioritizes the selection of H-1B registrations based on the highest prevailing wage level that the employer’s salary offer equals or exceeds.

Prevailing wages are usually calculated by reference to data collected by the Department of Labor (DOL) through its Occupational Employment Statistics (OES) program. DOL uses OES data to set four levels of prevailing wage for occupations in locations across the United States. (On October 8, 2020, DOL made changes to this system that resulted in higher prevailing wages across the board.) Under DHS’ new rule, if more registrations are received during the H-1B registration period than is necessary to reach the year’s numerical cap, USCIS will rank and select the registrations based on the highest OES prevailing wage level that the proffered wage equals or exceeds.

USCIS will begin with registrations whose proffered wage meets or exceeds the OES Level 4 prevailing wage. If there are insufficient registrations with such wages, USCIS will then proceed in descending order to registrations whose proffered wage meets or exceeds the OES Levels 3, 2, and 1. (When USCIS had its first annual registration process for H-1B cap-subject cases, in March 2020, employers registered prospective H-1B employees without providing specific job or wage data. This proposed new regulation would require that the electronic registration form be amended to require the applicable OES prevailing wage level for the job offered.)

Thus, if more registrations are received at a particular OES prevailing wage level than is required to meet the applicable cap, USCIS will randomly select from all registrations containing that particular OES prevailing wage level. Put another way, if USCIS receives more than 65,000 registrations whose proffered wages exceed an OES wage level 4, the lottery will be run only on those registrations. If the H-1B beneficiary will work in multiple locations, each with different prevailing wages, USCIS will rank the registration based on the lowest OES wage level that the proffered wage will equal or exceed.

This proposed rule was published on November 2, 2020, and comments on the rule must be submitted on or before December 2, 2020. The public will have 60 days from November 2, 2020 to comment on the revisions to the H-1B Registration Tool and Form I-129 that will be required to implement the rule. The rule will not take effect until a Final Rule is published and made effective.

We will post further updates as they become available.

© Jewell Stewart & Pratt PC 2020 

U.S. Immigration & Travel Restrictions - November 2020 updates

Updated 11/24/2020

Disclaimer: Any foreign national considering international travel should have an attorney review the particular circumstances of their case as there are currently several “bans” in effect.

Visa Bulletin: The Department of State’s November 2020 Visa Bulletin has been released. See our separate post here. The December Visa Bulletin is also now available, and USCIS is accepting Dates for Filing for employment-based cases.

Visa Ban: As detailed in our blog post, Presidential Proclamations 10014 and 10052 affect the issuance of new/first-time H, L, and certain J visas, as well as certain immigrant visas applications, with some exceptions. As of October 1, 2020, court decisions affected the ban as it relates to Diversity Visa (aka “green card lottery”) applicants and the plaintiffs of a NIV ban case. Since then, the Dept. of State made updates to its website about how it will apply the lifting of the ban. The most recent update is that visa applicants must have a relationship to one of the plaintiff organizations, such as the Chamber of Commerce. However, there does not appear to be a worldwide or standardized practice at visa-issuing posts; scheduling and issuances remain Embassy-by-Embassy. We are monitoring this development closely.

COVID Travel Ban for Europe, China, Iran, Brazil: Arrival restrictions for persons present in Europe (Schengen, U.K., Ireland), China, Iran, or Brazil (“COVID travel ban”) are continuing until cancelled or modified. Certain national interest exemptions are available for the European COVID ban. Note that due to Embassy closures and differences in how Embassies are interpreting the bans, the COVID ban is creating a de facto visa ban in many cases. CBP/CDC airport health screenings and requirements to land at a CBP-designated airport ended on September 14, 2020, however the COVID-related travel bans for Schengen, U.K., Ireland, China and Brazil remain in place.

Closure of Land Ports of Entry (Canada & Mexico): U.S. Customs & Border Protection has extended the land border closure (with exceptions for essential travel) until at least December 21, 2020.

Phased Embassy Re-Opening: Routine visa issuance operations at U.S. Embassies and Consulates worldwide continue to be limited or suspended. On July 14, 2020, the Department of State announced a phased resumption of routine visa services. Some Embassies are showing appointment availability, and emergency appointments are available on a case-by-case basis at some Embassies, for non-banned categories, emergencies, and assistance with COVID ban waivers.

NPRM on Students and Media visas: On September 25, 2020, DHS issued a Notice of Proposed Rulemaking establishing a fixed time period for admission for students, exchange visitors, and representatives of foreign media. The rule would replace the “duration of status” admission period. The rule must now go through the usual “Notice and Comment” period; it is not final.

USCIS Updates:

• Premium Processing Service: USCIS raised the PPS filing fee to $2,500 for cases received on or after October 19, 2020. For an update on potential future changes to PPS, see our post here.

• Public Charge: As of November 5, 2020, USCIS is once again permitted to enforce its public charge rule, e.g. the “wealth test.”

• Fee Changes: USCIS filing fee and form changes were enjoined by a District Court as of September 29, 2020.

• H-1B Rule: The administration is pushing forward with a new rule on H-1Bs. The changes to prevailing wages went into effect on October 8, and the restriction of the definition of “specialty occupation” goes into effect in 60 days. On October 28, the administration released a proposed rule changing the H-1B registration from a random lottery selection to a wage-based selection process.

• H-1B Cap: On August 14, 2020, USCIS ran an (unannounced) second lottery on existing H-1B cap registrations. The filing period for the newly selected registration cases is from August 17 to November 16, 2020.

• Interviews/Appointments: On June 4, 2020, USCIS Field Offices started a phased re-opening process. Most employment-based adjustment of status interviews are being waived. Naturalization interviews are being prioritized. As interviews and in-person services are resumed, including fingerprints (biometrics), new notices will be mailed out to applicants.

• Service center operations remain mostly unchanged.

U.S. Passport Agency: On August 3, 2020, the U.S. Passport Agency announced a phased re-opening. https://travel.state.gov/content/travel/en/passports.html

Form I-9 Completion During COVID-19: See our August post for further information. The I-9 flexibility provisions have been extended to December 31, 2020.

Reminder: Changes are rapidly evolving and may not be immediately posted here.

© Jewell Stewart & Pratt PC 2020

DOL announces changes to prevailing wage system effective October 8, 2020

December 7, 2020 update:

On December 1, 2020, the U.S. District Court for the Northern District of California set aside the wage change rule, requiring USCIS and the Department of Labor to revert back to the previous prevailing wage system.

Original Post:

U.S. immigration law requires employers to pay certain workers, including those working pursuant to H-1B, E-3, and H-1B1 visas, the greater of (1) the actual wage paid by the employer to all other individuals with similar qualifications for the employment in question, or (2) the prevailing wage level for the occupation in the area of employment. On October 6, 2020, the U.S. Department of Labor (DOL) announced changes to prevailing wage system, effective October 8, 2020, that will result in higher prevailing wages for all occupations.

As background, prevailing wages are usually calculated using data collected by DOL’s Office of Foreign Labor Certification (OFLC). In H-1B, H-1B1, and E-3 visa cases, the prevailing wage is then included in the Labor Condition Application (LCA) that the employer must have certified by DOL before the actual visa petition or application can be filed with the appropriate agency. DOL also uses OFLC data to set prevailing wages in its PERM program, which is often the first part of the employment-based permanent residence process.

DOL’s interim final rule (IFR), effective October 8, 2020, will change the method of computation of prevailing wages and will directly result in higher prevailing wages for all occupations. The rule will mostly apply only to prevailing wages calculated on or after October 8. It will not be applied to any previously-approved prevailing wage determinations, permanent labor certification applications, or LCAs. However, going forward, employers beginning new petitions or applications for H-1B, E-3, H-1B1, or PERM labor certification will notice an immediate increase in the OFLC prevailing wage data.

Taken with the U.S. Department of Homeland Security’s overhaul of the H-1B visa system, regulations for which are expected shortly, this change to the prevailing wage system may make it harder for U.S. employers to obtain visas for workers to fill a temporary need, adding to the stresses already imposed by the COVID-19 pandemic and an ailing U.S. economy. Existing prevailing wage data tends to skew higher than real-life salaries—for example, the prevailing wage for a software development manager with a bachelor’s degree and over four years of experience, in the San Francisco Bay Area, is $252,117 today (October 7, 2020)—so the new data may put visas out of reach for some employers.

These changes have been made at extremely short notice, and may be challenged in litigation; further updates will be posted here as they occur.

© Jewell Stewart & Pratt PC 2020

U.S. Immigration & Travel Restrictions - October 2020 Updates

Updated 10/23/2020

Disclaimer: Any foreign national considering international travel should have an attorney review the particular circumstances of their case as there are currently several “bans” in effect.

Visa Bulletin: The Department of State’s October 2020 Visa Bulletin has been released. See our separate post here.

Visa Ban: As detailed in our blog post, Presidential Proclamations 10014 and 10052 affect the issuance of new/first-time H, L, and certain J visas, as well as certain immigrant visas applications, with some exceptions. As of October 1, 2020, court decisions had only affected the ban as it relates to Diversity Visa (aka “green card lottery”) applicants and the plaintiffs of a NIV ban case. Since then, the Dept. of State made updates to its website about how it will apply the lifting of the ban. The most recent update is that visa applicants must have a relationship to one of the plaintiff organizations. We are monitoring this development closely.

COVID Travel Ban for Europe, China, Iran, Brazil: Arrival restrictions for persons present in Europe (Schengen, U.K., Ireland), China, Iran, or Brazil (“COVID travel ban”) are continuing until cancelled or modified. Certain national interest exemptions are available for the European COVID ban. Note that due to Embassy closures and differences in how Embassies are interpreting the bans, the COVID ban is creating a de facto visa ban in many cases. CBP/CDC airport health screenings and requirements to land at a CBP-designated airport ended on September 14, 2020, however the COVID-related travel bans for Schengen, U.K., Ireland, China and Brazil remain in place.

Closure of Land Ports of Entry (Canada & Mexico): U.S. Customs & Border Protection has extended the land border closure (with exceptions for essential travel) until at least November 21, 2020.

Phased Embassy Re-Opening: Routine visa issuance operations at U.S. Embassies and Consulates worldwide continue to be limited or suspended. On July 14, 2020, the Department of State announced a phased resumption of routine visa services. Some Embassies are showing appointment availability, and emergency appointments are available on a case-by-case basis at some Embassies, for non-banned categories, emergencies, and assistance with COVID ban waivers.

NPRM on Students and Media visas: On September 25, 2020, DHS issued a Notice of Proposed Rulemaking establishing a fixed time period for admission for students, exchange visitors, and representatives of foreign media. The rule would replace the “duration of status” admission period. The rule must now go through the usual “Notice and Comment” period; it is not final.

USCIS Updates:

• Premium Processing Service: USCIS raised the PPS filing fee to $2,500 for cases received on or after October 19, 2020. For an update on future changes to PPS, see our post here.

• Public Charge: As of September 22, 2020, USCIS is once again implementing its public charge rule, e.g. the “wealth test.”

• Fee Changes: USCIS filing fee and form changes are enjoined by a District Court as of September 29, 2020.

• H-1B Rule: The administration is pushing forward with a new rule on H-1Bs. The changes to prevailing wages are going into effect on October 8, and the restriction of the definition of “specialty occupation” goes into effect in 60 days. We will post a more detailed summary ASAP.

• H-1B Cap: On August 14, 2020, USCIS ran an (unannounced) second lottery on existing H-1B cap registrations. The filing period for the newly selected registration cases is from August 17 to November 16, 2020.

• Interviews/Appointments: On June 4, 2020, USCIS Field Offices started a phased re-opening process. Most employment-based adjustment of status interviews are being waived. Naturalization interviews are being prioritized. As interviews and in-person services are resumed, including fingerprints (biometrics), new notices will be mailed out to applicants.

• Service center operations remain mostly unchanged.

U.S. Passport Agency: On August 3, 2020, the U.S. Passport Agency announced a phased re-opening. https://travel.state.gov/content/travel/en/passports.html

Form I-9 Completion During COVID-19: See our August post for further information.

Reminder: Changes are rapidly evolving and may not be immediately posted here.

© Jewell Stewart & Pratt PC 2020

Future changes to USCIS's Premium Processing Service

On September 30, 2020, Congress passed a continuing resolution to fund the government through December 11, 2020, and the president is expected to sign it into law. The continuing resolution contains certain changes to USCIS’s Premium Processing Service or “PPS,” including raising the filing fee, and making PPS available to new categories such as EB-1Cs, NIWs, I-539s, and EADs. Although the law goes into effect immediately, the changes to PPS do not. USCIS must now implement the law by proposing regulations, which can take several months. We are tracking this closely and when there are regulations promulgated, we will be reaching out to clients who may benefit from using PPS in new and existing/already pending cases. Note that this change is unrelated to USCIS’s Fee Rule which is on hold as of September 29, 2020, due a District Court injunction.

© Jewell Stewart & Pratt PC 2020