As a result of the COVID-19 pandemic, and the Trump

Administration's efforts to protect U.S. workers and wages,

there have been several U.S. immigration developments in the last

few weeks.  This writing will provide an update of some of

these recent U.S. immigration developments and the potential impact

on U.S. employers and foreign nationals.

  • Department of State (DOS)

    Visa Bulletins for October 2020 and November 2020. On

    September 24, 2020, DOS issued its monthly bulletin that announced

    a surplus of employment-based immigrant visas: a total of 261,500

    for FY 2021 which commenced on October 1, 2020. This was the result

    of major slowdowns in family-based immigrant visa processing during

    FY 2020, as a result of the COVID-19 pandemic. In addition, USCIS

    announced that it will permit immigrant applicants to file their

    Adjustment of Status (AOS) applications based on the “Dates

    for Filing” chart in the October 2020 Visa Bulletin. The Visa

    Bulletin for November 2020, which was released at the very end of

    October 2020, is consistent with the Visa Bulletin for October

    2020. USCIS also indicated the “Dates for Filing” chart

    will be used for November 2020, as well. As a result of the

    positive movement in the Employment-Based, Third Preference (EB-3)

    category for India in the October 2020 and November 2020 Visa

    Bulletins, Indian nationals in the U.S. who had been waiting years

    to file an Application to Register Permanent Residence or Adjust

    Status (Form I-485) were now able to move forward with the last

    step of the U.S. Green Card application process.

  • Trump Administration Expands

    Premium Processing. On September 30, 2020, President Trump

    signed into law House Rule 8337 that gives the Department of

    Homeland Security (DHS) immediate authority to increase Premium

    Processing fees and to expand Premium Processing services. It

    increased the current Premium Processing fee from $1,440.00 to

    $2,500.00, except for H-2B (temporary workers) petitions and R

    (religious workers) petitions. The new law also allows for USCIS to

    expand Premium Processing Service to other immigration benefit

    types, not already subject to Premium Processing Service prior.

    USCIS employment-based green card petitions, such as the EB-1

    Multi-National Manager and Executive petitions and EB-2 National

    Interest Waiver petitions may be eligible for Premium Processing

    Service. In addition, Applications for Employment Authorization

    (Form I-765) and certain Applications to Extend or Change

    Nonimmigrant Status (Form I-539) may be eligible for Premium

    Processing Service in the future. The act also permits USCIS to

    raise or set Premium Processing fees for certain categories without

    following the normal rule making process, provided certain

    benchmarks (including processing times) are met.1 It is important to

    note that it may take several weeks or months for USCIS to

    implement the expansion of Premium Processing Service to other

    immigration benefit types.

  • S. District Court Judge

    Issues Preliminary Injunction Against Presidential Proclamation

    10052. On October 1, 2020, a U.S. District Judge ruled

    that President Trump exceeded his authority when he issued

    Proclamation 10052 on June 22, 2020. Proclamation 10052 restricts

    certain foreign nationals who hold nonimmigrant visas issued on or

    after June 24, 2020 in the H-1B, H-2B, J or L categories from using

    these to enter the U.S. It also restricts the ability of foreign

    nationals from applying for these visa types. In the decision, the

    U.S. District Judge determined President Trump exceeded his

    authority by effectively nullifying significant portions of the

    Immigration and Nationality Act (INA) and that his Administration

    had not established a factual basis to support its claims that the

    Proclamation 10052 was designed to protect American jobs. The

    injunction issued by the U.S. District Court Judge only provides

    relief to the plaintiffs in the case and is not a nationwide

    injunction.  The plaintiffs in the lawsuit were the U.S.

    Chamber of Commerce, the National Retail Federation, the National

    Association of Manufacturers, Technet, and Intrax, Inc. 

    Employers that are members of these organizations, and that

    sponsored foreign nationals for the H-1B, L-1, H-2B, or J-1

    categories, would not be subject to Proclamation 10052. 

    Evidence of membership in these organizations by the sponsoring

    employer may be presented by the foreign national to the U.S.

    embassy or consulate in order to show the foreign national is not

    subject to Proclamation 10052.

  • USCIS Issues Guidance on

    Inadmissibility. On October 2, 2020, the USCIS issued

    guidance that addressed the issue of inadmissibility based on

    membership in, or affiliation with, the Communist Party or any

    other totalitarian party. A new section in the USCIS Policy

    Manual provides guidance on how to adjudicate the issue of

    inadmissibility as a result of membership in the Communist Party or

    any other totalitarian party in the context of applying for a U.S.

    Green Card. Unless otherwise exempt, any intending immigrant who is

    a member or affiliate of the Communist Party or any other

    totalitarian party (or subdivision or affiliate), domestic or

    foreign, is inadmissible to the U.S. As a sign of the ongoing

    deterioration in U.S.-Chinese relations, the Chinese state

    affiliated media responded to the new USCIS guidance by tweeting

    “Many outstanding talents in China are Communist Party

    members. The decision by the US helps keep more talents in China

    since it takes out their illusion. Not bad. What's more,

    non-CPC members now have much less interest in immigrating to the

    U.S.”2

  • Trump Administration Issues

    Sweeping Interim Final Rules (IFRs) for H-1B, H-1B1, and E-3 Visa

    Programs, and for Determining Prevailing Wage Rates. On

    October 6, 2020, the US Department of Homeland Security (DHS) and

    the US Department of Labor (DOL) issued two Interim Final Rules

    (IFRs) that introduced significant changes with respect to the

    H-1B, H-1B1, and E-3 visa programs and to the wage levels in

    connection with these programs. The Trump Administration did not

    provide a notice and comment period for either rule; and the White

    House's Office of Information and Regulatory Affairs waived

    review of both rules before they were issued in the Federal

    Register.

The DHS rule introduces significant changes to the H-1B program

and will go into effect on December 7, 2020. The

rule revises the definition of the term “specialty

occupation” by restricting the educational degree requirements

and requiring employers to demonstrate that the proffered H-1B

position requires a bachelor's degree in a specific specialty

or its equivalent. The rule also revises the term

'employer-employee relationship' to introduce more factors

for USCIS officers to consider when determining whether such a

relationship exists and puts more restrictions on contractors who

place H-1B workers at third-party locations. In addition, the new

rule limits the H-1B validity period for third-party placement

petitions to a maximum period of one year. DHS

said the interim final rule will impose new annual costs of almost

$25 million for petitioners.

The DOL rule dramatically increases the prevailing wage levels

in connection with the filing of a Labor Condition Application

(LCA) for H-1B, H-1B1, and E-3 petitions. The DOL rule went

into effect on Thursday, October 8, 2020. Level I

has increased from the 17th to the 45th

percentile; Level 2 from the 34th to the 62nd percentile; Level 3

from the 50th to the 78th percentile; and

Level 4 from the 67th to the 95th percentile.

According to DOL's Office of Foreign Labor Certification

(OFLC), the IFR will apply to:

  • Applications for Prevailing Wage

    Determination, Form ETA-9141, pending with OFLC's National

    Prevailing Wage Center (NPWC) as of the effective date of the

    regulation;

  • Applications for Prevailing Wage

    Determination, Form ETA-9141, filed with the NPWC on or after the

    effective date of the regulation;

  • Labor Condition Applications for

    Nonimmigrant Workers (LCA), Form ETA-9035/9035E, filed with OFLC on

    or after the effective date of the regulation where the Occupation

    Employment Statistics (OES) survey data is the prevailing wage

    sources, and where the employer did not obtain the prevailing wage

    determination from the NPWC before the effective date of the

    regulation.

An analysis of the DOL wage rule by the National Foundation for

American Policy (NFAP) concluded that “the significant

increases in the mandated minimum salaries would lead a rational

observer to conclude the purpose of the DOL wage rule is to price

foreign nationals out of the U.S. labor market.”3

  • Lawsuits Filed to Challenge

    the DHS and DOL Interim Final Rules. Since the issuance of

    the DHS and DOL Interim Final Rules (IFRs) on October 6, 2020,

    there have been several lawsuits filed challenging the legality of

    the new IFRs both on procedural and statutory grounds.

  • On October 16, 2020, the first such

    suit, ITServe Alliance, Inc., et al v. Scalia et

    al was filed in U.S. District Court in New Jersey on

    behalf of a consortium of technology consulting firms. This suit,

    like the others, argues that DOL inappropriately adjusted the Level

    I prevailing wage rate upward on the assumption that wages paid to

    individuals with a master's degree represent entry-level wages,

    leading to dramatic overnight increases in wage rates. The suit

    argues that new wage rates are “set under a novel standard

    that conflicts with the governing statutory criteria” and are

    “arbitrary and capricious because the agency relied on

    outdated, incorrect, or limited empirical data, failed to consider

    readily available, relevant data and empirical studies, and engaged

    in reasoning that conflicts with basic economic theory.” The

    plaintiffs also contend that DOL “failed to afford employers

    or the public with any advance notice or opportunity to comment on

    the facts, the agency's reasoning, the economic implications,

    or the feasibility or detrimental effects of the rule.” The

    plaintiffs are seeking a preliminary and permanent injunction to

    stop DOL from imposing the new wage rates.

  • On October 19, 2020, a group of

    mainly educational institutions filed a suit, Purdue

    University et al v. Scalia et al., in the U.S.

    District Court of Washington D.C. The plaintiffs argue that the DOL

    interim final H-1B rule was posted “unnecessarily and without

    regard to the disastrous consequences to the public” and was

    made effective less than 48 hours later without following the legal

    requirement for advance public notice or providing an opportunity

    for comment before the rule was made effective. The lawsuit states

    that the rule was “unlawfully and intentionally meant to upset

    the U.S. labor market and disrupt the way businesses operate.”

    The suit particularly focused on the impact of the DOL wage rule to

    universities and tech companies. By dramatically raising wage

    levels, the rule will particularly affect start-up companies and

    research and development firms who will “simply have to

    outsource those jobs overseas.” Moreover, with respect to

    universities: “the changes to the wage structure imposed by

    the IFR will create a substantial financial hardship by raising

    wages at time when higher education has already faced great

    economic challenges due to the impact of the COVID-19.”

  • On October 19, 2020, a consortia of

    business and trade interest groups filed a suit,

    S. Chamber of Commerce et al.

    v. DHS et al. This suit, unlike the other two

    lawsuits, challenges both the DOL and the DHS IFRs. The other two

    lawsuits only challenge the DOL's IFR. The lawsuit contends

    that the IFRs will force U.S. businesses to incur significant

    additional costs. It states that “DOL calculates that its Rule

    alone will result in at least $189 billion in costs imposed on

    employers over a 10-year period” and that, unless enjoined,

    “these Rules will shatter long-held reliance interests,

    causing enormous loss of productivity, creativity, and

    innovation.”

  • DOS Proposes to Eliminate

    “B-1 In Lieu of H” Policy. On October 21, 2020,

    DOS issued a proposal in the Federal Register [Public

    Notice 11221] to amend the regulation governing nonimmigrant visas

    for temporary visitors of business. If approved, the amended rule

    would “no longer authorize issuance of B-1 visas for certain

    aliens classifiable as H-1B or H-3 nonimmigrants, commonly referred

    to as the 'B-1 in lieu of H' policy, unless the alien

    independently qualifies for a B-1 visa for a reason other than the

    B-1 in lieu of H Policy.”4 Comments from the public are due

    by December 21, 2020.

Department of Homeland Security (DHS) Proposes to

Replace H-1B Cap Random Selection Process with Wage-Based Selection

Process. On October 28, 2020, DHS announced a notice of

proposed rulemaking to amend the regulations governing the process

by which the US Citizenship and Immigration Services (USCIS)

selects H-1B registrations for filing of H-1B cap-subject

petitions. Under the proposed rule, DHS would no longer conduct a

random selection process for H-1B visas, but, rather, would rank

and distribute visa slots based on the highest salaries paid to the

beneficiaries by employers. If finalized as proposed, USCIS would

first select registrations in which Level 4 wages are to be paid,

and then Level 3, Level 2, and Level 1, provided there are

remaining slots available.   However, given the number of

registrations projected to be submitted, it appears that in order

to have a chance at selection, an employer would be forced to pay a

Level 4 or Level 3 wage to foreign nationals, which is a

considerable cost increase for employers, given the new DOL's

IFR, which increased prevailing wage levels.  The proposed

rule modifying the H-1B selection process will be subject to a

notice and comment period following publication.  Interested

parties will have 30 days to submit comments relevant to the

proposed rule.  It is likely the new rule will face legal

challenges, especially from the IT industry, which relies heavily

on the H-1B program, as well as from higher education institutions.

If the new rule becomes final and allowed to stand, it would end

the random selection process by which H-1Bs had been chosen in the

past, and result in H-1B slots to be awarded to petitions filed at

the highest wage levels.

Footnotes

1.

https://www.natlawreview.com/article/us-immigration-update-must-be-season-witch

2.

https://www.republicworld.com/world-news/china/china-frowns-upon-us-limiting-immigration-of-people-associated-with-co.html

3.

“An Analysis of the DOL H-1B Wage Rule.” National

Foundation for American Policy. NFAP Policy Brief, October

2020. Quote is on page 10.

https://nfap.com/wp-content/uploads/2020/10/Analysis-of-DOL-H-1B-Wage-Rule.NFAP-Policy-Brief.October-2020.pdf

4.

https://www.govinfo.gov/content/pkg/FR-2020-10-21/pdf/2020-21975.pdf

The content of this article is intended to provide a general

guide to the subject matter. Specialist advice should be sought

about your specific circumstances.

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