U.S. Immigration Updates (September – October 2020)
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
. OnSeptember 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 ExpandsPremium Processing
. On September 30, 2020, President Trumpsigned 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 JudgeIssues Preliminary Injunction Against Presidential Proclamation
10052
. On October 1, 2020, a U.S. District Judge ruledthat 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 onInadmissibility
. On October 2, 2020, the USCIS issuedguidance 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 IssuesSweeping Interim Final Rules (IFRs) for H-1B, H-1B1, and E-3 Visa
Programs, and for Determining Prevailing Wage Rates
. OnOctober 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 WageDetermination, Form ETA-9141, pending with OFLC’s National
Prevailing Wage Center (NPWC) as of the effective date of the
regulation;
- Applications for Prevailing WageDetermination, Form ETA-9141, filed with the NPWC on or after the
effective date of the regulation;
- Labor Condition Applications forNonimmigrant 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 Challengethe DHS and DOL Interim Final Rules
. Since the issuance ofthe 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 suchsuit, 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 ofmainly 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 ofbusiness 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
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