July 11, 2021 Newsletter Powered by ABIL

District Court Vacates Final Rule Affecting Wages for H-1B, PERM Workers; OFLC Updates Implementation

On June 23, 2021, the U.S. District Court for the Northern District of California issued an order in Chamber of Commerce v. DHS, vacating the final rule, “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States” and remanding the matter to the U.S. Department of Labor. The Department did not oppose the vacating of the rule. In its motion, the Department stated that until the agency conducts further review, it “cannot say for certain the extent to which the final rule may need to be revised, but the concerns raised to this point suggest that there may need to be significant changes to the rulemaking going forward.”

The Department published the final rule on January 14, 2021, following district court orders that set aside an October 8, 2020, interim final rule. The final rule amended the Department’s regulations governing the prevailing wages for employment opportunities that U.S. employers seek to fill with foreign workers on a permanent or temporary basis under the PERM, H-1B, H-1B1, or E-3 visa programs. The Department has twice delayed the effective date of the final rule. In light of these delays and now the June order vacating the final rule, the operative version of the regulations at 20 CFR §§ 656.40 and 655.731 “continues to be the version in place on October 7, 2020, prior to the publication” of the interim final rule, the Office of Foreign Labor Certification said.

The Department will need to issue a new regulation if it wishes to change the current prevailing wage for high-skilled foreign nationals. In April 2021, the Department requested information from the public on data sources for calculating the prevailing wage for H-1B visa holders and employment-based immigrants. DOL may use the information it received from the public if it decides to make changes to the prevailing wage system for foreign-born professionals.


· OFLC announcement (scroll down to June 29, 2021), https://www.dol.gov/agencies/eta/foreign-labor

· Request for Information, Employment and Training Administration, Dept. of Labor, April 2, 2021, https://bit.ly/36ax1Ch

USCIS Releases Guidance Following June 30 Expiration of EB-5 Regional Center Program

The EB-5 Immigrant Investor Regional Center Program expired on June 30, 2021. U.S. Citizenship and Immigration Services released related guidance on July 1, 2021, noting that the lapse does not affect EB-5 petitions filed by investors who are not seeking a visa under the Regional Center Program. Due to the lapse, USCIS will reject the following forms received on or after July 1, 2021:

· Form I-924, Application for Regional Center Designation Under the Immigrant Investor Program, except when the application type indicates that it is an amendment to the regional center’s name, organizational structure, ownership, or administration; and

· Form I-526, Immigrant Petition by Alien Investor, when it indicates that the petitioner’s investment is associated with an approved regional center.

USCIS said it will continue to accept and review Form I-829, Petition by Entrepreneur to Remove Conditions on Permanent Resident Status, including those filed on or after July 1, 2021. USCIS is rejecting all Forms I-485, Application to Register Permanent Residence or Adjust Status, and any associated Forms I-765, Application for Employment Authorization, and Forms I-131, Application for Travel Document, based on an approved Regional Center Form I-526.


· USCIS alert, July 1, 2021, https://www.uscis.gov/working-in-the-united-states/permanent-workers/eb-5-immigrant-investor-program

USCIS Announces Updated Receipt Guidance for I-9 Process

U.S. Citizenship and Immigration Services (USCIS) announced updated guidance on receipts for the I-9 employment authorization verification process:

· When employees present a receipt showing that they applied to replace a List A, B, or C document that was lost, stolen, or damaged, they should show their employer the replacement document for which the receipt was given. However, USCIS acknowledged

that this is not always possible due to document delays, changes in status, or other factors.

· If the employee does not present the original document for which the previously provided receipt was issued but presents, within the 90-day period, another acceptable document (or documents) to demonstrate his or her identity and/or employment authorization, employers may now accept such documentation.

In cases where an employee presents a document (or documents) other than the actual replacement document, the employer should complete a new Section 2 and attach it to the original Form I-9, USCIS said. In addition, the employer should provide a note of explanation either in the Additional Information box included on page 2 of the Form I-9 or as a separate attachment.


· USCIS guidance, June 25, 2021, https://www.uscis.gov/i-9-central/form-i-9-acceptable-documents/updated-receipts-guidance

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