WEEKLY IMMIGRATION UPDATE 10.12.2020
1. DOL Issues Interim Final Rule Raising Prevailing Wages for Foreign Workers– DOL is increasing prevailing wages mandated for H-1B, E-3, H-1B1 and PERM labor certification applications by changing the manner of computation under the existing four-tier wage structure.
2. DHS Revises Definition of H-1B ‘Specialty Occupation,’ Makes Other Changes– The rule amends the definition of a “specialty occupation” to implement USCIS’ stricter interpretation of what constitutes a direct relationship between the required degree field(s) and the duties of the position. The rule also defines the employer-employee relationship and significantly restricts third party placements.
3. USCIS Updates Guidance on TPS and Eligibility for Adjustment of Status– USCIS issued policy guidance clarifying that individuals currently in the United States pursuant to a grant of Temporary Protected Status, even after re-admission pursuant to an advance parole, are ineligible to file for adjustment of status under § 245(a) of the Immigration and Nationality Act.
4. USCIS Issues Guidance on Inadmissibility Based on Membership/Affiliation in Communist Party or Totalitarian Party – The USCIS Policy Manual provides guidance on how to adjudicate inadmissibility due to membership in the Communist Party or any other totalitarian party in the context of adjustment-of-status applications. In general, 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 United States.
Please scroll down to view the full updates.
1. DOL Issues Interim Final Rule Raising Prevailing Wages for Foreign Workers
The Department of Labor (DOL) issued an interim final rule on October 8, 2020, amending Employment and Training Administration (ETA) regulations governing prevailing wages for nonimmigrant H-1B, H-1B1, and E-3 foreign workers and immigrant EB-2 and EB-3 and foreign workers. Specifically, DOL is increasing prevailing wages by changing their computation under the existing four-tier wage structure.
The agency said the changes are intended to “better reflect the actual wages earned by U.S. workers similarly employed to foreign workers. This update will allow DOL to more effectively ensure that the employment of immigrant and nonimmigrant workers admitted or otherwise provided status through the above-referenced programs does not adversely affect the wages and job opportunities of U.S. workers.”
According to DOL’s Office of Foreign Labor Certification (OFLC), the interim final rule 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 (October 8, 2020) of the regulation;
- Applications for Prevailing Wage Determination, Form ETA-9141, filed with the NPWC on or after the effective date (October 8, 2020) of the regulation; and
- Labor Condition Applications for Nonimmigrant Workers (LCA), Form ETA-9035/9035E, filed with OFLC on or after the effective date (October 8, 2020) of the regulation where the Occupational Employment Statistics survey data is the prevailing wage source, and where the employer did not obtain the prevailing wage determination from the NPWC before the effective date of the regulation.
DHS issued the rule as an Interim Final Rule, bypassing the requirements of the Administrative Procedures Act, ostensibly because the economic downturn caused by COVID-19 constitutes an emergency justifying the bypass. Many immigration practitioners and some analysts question this justification, given that the industries that have been tragically most impacted by the COVID downturn are not those which traditionally employ H-1B professional positions. However, groups in favor of reducing legal immigration applaud the move as a necessary protection of the domestic workforce.
There are also a number of questions regarding the accuracy of the new wage calculations. Details are available in below articles.
ABIL, AILA and LAC’s position is that as a result of prevailing wage inflation, the rule is likely to have an adverse effect on U.S. employers, especially cost-sensitive entities like nonprofits, universities, hospitals, start-ups, and small businesses. The rule and other recent anti-H-1B actions are also likely to push some employers and foreign workers to relocate to other countries.
Litigation challenging the rule is imminent.
Although the rule is effective immediately, comments may be submitted until November 9, 2020.
- DOL interim final rule
- OFLC notice
- “Featured Issue: DHS and DOL Rules Altering the H-1B Process and Prevailing Wage Levels” (data collection form for potential plaintiffs)
- “DOL’s H-1B Wage Rule Massively Understates Wage Increases by Up to 26 Percent“
- “The New Minimum Salaries in Finance and Tech for H-1B Visas,” efinancialcareers
- “Trump Administration Issues Two New Rules To Restrict H-1B Visas,” Forbes
- “Big Tech’s Fight for High-Skilled Visa Holders,” Axios
- Foreign Labor Certification Data Center
2. DHS Revises Definition of H-1B ‘Specialty Occupation,’ Makes Other Changes
The Department of Homeland Security (DHS) issued an interim final rule effective December 7, 2020, that revises the regulatory definition of and standards for a “specialty occupation” for H-1B purposes.
The rule amends the definition of a “specialty occupation” at 8 CFR 214.2(h)(4)(ii) to indicate that there must be a direct relationship between the required degree field(s) and the duties of the position:
- General degrees in engineering, liberal arts, business, et cetera without further specialization or explanation are not sufficient to meet specialty occupation.
- In cases where the petitioner lists degrees in multiple “disparate” fields of study as the minimum entry requirement for a position, the petitioner must establish how each field of study is in a specific specialty providing “a body of highly specialized knowledge” directly related to the duties and responsibilities of the particular position.
- Where a position may allow a range of degrees, and apply multiple bodies of highly specialized knowledge, each of those qualifying degree fields must be directly related to the proffered position.
Further, instead of demonstrating that a bachelors’ degree is “normally”, “commonly” or “usually” required as reflected in the current law; petitioners will have to establish that the bachelor’s degree in a specific specialty or its equivalent is a minimum requirement for entry into the occupation in the United States by showing that the required degree is always:
- The requirement for the occupation as a whole;
- The occupational requirement within the relevant industry;
- The petitioner’s particularized requirement; or
- Because the position is so specialized, complex, or unique that it is necessarily required to perform the duties of the specific position.
Among other things, the interim rule requires that the petitioner establish, at the time of filing, that it has actual work in a specialty occupation available for the beneficiary as of the start date of the validity period as requested on the petition.
In addition, all H-1B petitions for beneficiaries who will be placed at a third-party worksite must submit evidence showing that the beneficiary will be employed in a specialty occupation, and that the petitioner will have an employer-employee relationship with the beneficiary. Specifically, the rule:
- Adds definitions for “worksite” and “third-party worksite”
- Revises the definition of “United States employer”
- Clarifies how U.S. Citizenship and Immigration Services (USCIS) will determine whether there is an “employer-employee relationship” between the petitioner and the beneficiary
- Requires corroborating evidence of work in a specialty occupation
- Limits the validity period for third-party placement petitions to a maximum of 1 year
- Requires that USCIS provide a written explanation when the petition is approved with an earlier validity period end date than requested
- Amends the general itinerary provision to clarify it does not apply to H-1B petitions
- Codifies USCIS’ H-1B site visit authority, including the potential consequences of refusing a site visit
DHS said the interim final rule will impose new annual costs of almost $25 million for petitioners completing and filing H-1B petitions, with an additional time burden of 30 minutes.
As with the prevailing wage rule, litigation is imminent.
Comments are due by November 9, 2020, on the information collection and by December 7, 2020, on the interim final rule.
- DHS interim final rule
- “Trump Administration Issues Two New Rules To Restrict H-1B Visas,” Forbes
- “Featured Issue: DHS and DOL Rules Altering the H-1B Process andPrevailing Wage Levels” (data collection form for potential plaintiffs)
3. USCIS Updates Guidance on TPS and Eligibility for Adjustment of Status
On October 6, 2020, U.S. Citizenship and Immigration Services (USCIS) issued policy guidance clarifying whether temporary protected status (TPS) beneficiaries are eligible to adjust status under § 245(a) of the Immigration and Nationality Act (INA). That section requires a noncitizen to have been inspected and admitted, or inspected and paroled, into the United States unless exempt from this requirement.
USCIS said that its updated guidance “reaffirms USCIS’ longstanding interpretation that an alien who enters the United States without having been inspected and admitted or inspected and paroled, and who is subsequently granted TPS, generally does not meet that requirement.”
The updated guidance also incorporates Matter of Z-R-Z-C-, which held that generally TPS beneficiaries who travel outside the United States with prior authorization under INA § 244(f)(3) retain the same status when they return to the United States that they had when they departed. “If they were not considered inspected and admitted, or inspected and paroled, before their departure, that will not change when they return,” USCIS said.
This updated policy guidance “clarifies that decisions in the Sixth and Ninth Circuits holding that TPS is an admission for INA § 245(a) purposes are limited to those jurisdictions. Outside of the Sixth and Ninth Circuits, Matter of H-G-G-, 27 I. & N. Dec. 617, 635 (AAO 2019), applies.”
4. USCIS Issues Guidance on Inadmissibility Based on Membership/Affiliation in Communist Party or Totalitarian Party
On October 2, 2020, U.S. Citizenship and Immigration Services (USCIS) issued policy guidance to address 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 inadmissibility due to membership in the Communist Party or any other totalitarian party in the context of adjustment-of-status applications. In general, 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 United States.
Although the new guidance adheres to existing U.S. immigration law, it appears to direct immigration officers to enforce the law more strictly and provides step-by-step instructions for immigration officers making such inadmissibility determinations.
- USCIS alert
- “Experts Weigh Impactof U.S. Immigration Ban on Chinese Communists,” Voice of America News
COVID-19 resources. The response of the U.S. immigration agencies to the coronavirus (COVID-19) pandemic is constantly evolving, making it difficult to report relevant information that is not rendered immediately obsolete. The list of online resources below is intended to serve as a quick reference to the most current available agency information.
- Coronavirus.gov: Primary federal site for general coronavirus information
- USA.gov/coronavirus: Catalog of U.S. government’s response to coronavirus
- CDC.gov/coronavirus: Centers for Disease Control and Prevention information
- American Immigration Lawyers Association: (links to practice alerts on this site are restricted to members)
Immigration Agency Information
Department of Homeland Security: DHS.gov/coronavirus
- USCIS: USCIS.gov/coronavirus
– Overview and FAQs: https://www.ice.gov/coronavirus
– Requirements for ICE Detention Facilities: https://www.ice.gov/doclib/coronavirus/eroCOVID19response
– Updates and Announcements: https://www.cbp.gov/newsroom/coronavirus
– Accessing I-94 Information: https://i94.cbp.dhs.gov/I94/#/home
Department of Labor:
– OFLC Announcements (COVID-19 announcements included here): https://www.foreignlaborcert.doleta.gov/
– COVID-19 FAQs:
- Round 1 (Mar. 20, 2020): https://www.foreignlaborcert.doleta.gov/pdf/DOL-OFLC_COVID-19_FAQs_Round%201_03.20.2020.pdf
- Round 2 (Apr. 1, 2020): https://www.foreignlaborcert.doleta.gov/pdf/DOL-OFLC_COVID-19_FAQs_Round%202_04.01.2020.pdf
- Round 3 (Apr. 9, 2020): https://www.foreignlaborcert.doleta.gov/pdf/DOL-OFLC_COVID-19_FAQs_Round%203.pdf
State Department: https://www.state.gov/coronavirus/
- Travel advisories: https://travel.state.gov/content/travel/en/traveladvisories/ea/covid-19-information.html
- Country-specific information: https://travel.state.gov/content/travel/en/traveladvisories/COVID-19-Country-Specific-Information.html
- J-1 exchange visitor information: https://j1visa.state.gov/covid-19/
- Executive Office for Immigration Review: https://www.justice.gov/eoir/eoir-operational-status-during-coronavirus-pandemic
AGENCY TWITTER ACCOUNTS
- EOIR: @DOJ_EOIR
- ICE: @ICEgov
- Study in the States: @StudyinStates
- USCIS: @USCIS
I-9 AND E-VERIFY WEBINARS
USCIS and Immigrant and employee rights webinars. The Department of Justice’s Immigrant and Employee Rights Section, Civil Rights Division,has joined with USCIS to present webinars on employee rights during the E-Verify and Form I-9 employment eligibility verification processes. For more information or to register, see: https://www.justice.gov/crt/webinars.
E-Verify webinar schedule: https://www.e-verify.gov/calendar-field_date_and_time/month/202004.
AGENCY PROCESSING TIMES
USCIS case processing times: https://egov.uscis.gov/processing-times/
US Department of Labor: https://flag.dol.gov/processingtimes
Department of State Visa Bulletin: https://travel.state.gov/content/visas/en/law-and-policy/bulletin.html
This newsletter was prepared in collaboration with ABIL, the Alliance of Business Immigration Lawyers, comprised of twenty U.S. immigration lawyers who head some of the top immigration practices in the country. Larrabee Albi Coker LLP is an active member of ABIL.
Legal Disclaimer: This newsletter is provided for informational purposes only and does not substitute for legal advice based on the circumstances of a specific matter.