Following up on its November announcement, last week USCIS issued a Final Rule to change the way cap-subject H-1B petitions are selected.

The Final Rule (which is unchanged from the proposed November Rule) would significantly alter the H-1B cap selection process by creating a tiered selection system. The tiered system would be based on the four OES (Occupational Employment Statistics) Wage Levels and would strongly favor employers who can pay the highest wage for the occupation in the area of employment.

USCIS has stated its plan to implement the Rule for this years’ H-1B Cap Season (FY2022).  It’s questionable, however, whether this will happen.  Various challenges are expected and will likely result in the Rule being enjoined or at least paused, so watch for updates.

Under the Rule, USCIS would again accept Employer electronic registrations for the H-1B cap.  In addition to the basic registration details required during last year’s registration, Employers would also include the “highest OES wage level that the proffered wage equals or exceeds for the relevant SOC [Standard Occupational Classification] code in the area of intended employment.”

If so many Employer registrations are received that a cap lottery is needed, USCIS would use the OES wage level information to rank the Employer Registrations. USCIS would select Employer registrations starting with Level IV, then proceed with Level III registrations, and so on until the Regular H-1B cap and the Advanced Degree Exemption are both exhausted.  Readers may recall that there are 65,000 spots in the Regular Cap and 20,000 in the Advanced Degree Exemption per fiscal year.

Historically, when a cap lottery was needed, USCIS conducted a random selection process.  This essentially gave all employers the same chance.  Random selection was used in last year’s lottery, but with a slight tweak. Instead of first selecting petitions against the Advanced Degree Exemption, USCIS first selected from all petitions under the Regular Cap.  This included those with US advanced degrees and thereby slightly increased their odds for selection.  Then, USCIS selected petitions to be counted against the advanced degree exemption.  This year’s change is much more substantial.

So, while USCIS intends to implement the change for this year’s cap selection, there is a chance that this may not happen.

Either way, if you’re an employer interested in sponsoring a foreign national professional level worker for H-1B status, it’s best to begin preparing now because the upfront analysis may require additional time prior to the limited Employer Registration window.  If the new selection system takes effect for this year’s cap, some Employers may face a reduced chance of being selected to petition for the workers they need.  As such, this year more than ever, it’s important to contact legal counsel to begin preparing as soon as possible.  Options for sponsorship other than H-1B status may be available.

Please also see my November blog post on this issue at https://immigrationview.foxrothschild.com/general-immigration-news-and-updates/selection-in-the-h-1b-cap-lottery-if-the-proposed-new-process-takes-effect/.

Please contact me directly with inquiries at cwadhwani@foxrothschild.com or 412-394-5540.

Catherine Wadhwani is a Partner and Co-Chair of the Immigration Practice Group at Fox Rothschild LLP.  For more than 25 years, her practice has focused on business immigration law and compliance, primarily in the health care, general corporate and academic sectors.  Ms. Wadhwani’s practice covers the United States and Consulates worldwide.  She is based in our Pittsburgh, Pennsylvania office.  Please contact Ms. Wadhwani at cwadhwani@foxrothschild.com  or at 412-394-5540.

 

On December 31, 2020, the President signed a Presidential Proclamation on Suspension of Entry of Immigrants and Nonimmigrants Who Continue to Present a Risk to the United States Labor Market. This proclamation extends Presidential Proclamations (P.P.) 10014 and 10052 through March 31, 2021. P.P.  10014 suspends the entry to the United States of certain immigrant visa applicants, while P.P. 10052 suspends the entry to the United States of certain nonimmigrant visa applicants who present a risk to the U.S. labor market during the economic recovery following the novel coronavirus outbreak. Specifically, the suspension in P.P. 10052 applies to applicants for H-1B, H2B, and L-1 visas; J-1 visa applicants participating in the intern, trainee, teacher, camp counselor, au pair, or summer work travel programs; and any spouses or children of covered applicants applying for H-4, L-2, or J-2 visas.

Extension of Nonimmigrant Visa Ban

Effective as of June 24, 2020, President Trump’s Proclamation 10052 suspended the entry to the U.S. of foreign nationals (with limited exceptions) holding H-1B, H-2B, J-1 and L-1 status, including dependent family members.  Originally set to expire on December 31, 2020, that same day, the President extended the Proclamation until March 31, 2021, thereby continuing restriction of travel to the U.S. and issuance of certain nonimmigrant visas.

There are limited exceptions which allow entry for H-1B/H-4, H-2B/H-4, J-1/J-2, and L-1/L-4 visa holders, including (1) individuals who held a valid visa stamp in their passport, but were outside of the U.S. on the effective date of the proclamation, and (2) individuals who possess an official travel document other than a visa (e.g., a transportation letter, an appropriate boarding foil, or an advance parole document) that was valid on the effective date of the Proclamation or issued on any date thereafter that permits him or her to travel to the United States and seek entry or admission.

Additional exceptions apply to: (3) any lawful permanent resident of the U.S., spouses or children (under the age of 21) of a U.S. citizen, (4) a foreign national that will provide temporary labor or services essential to the U.S. food supply chain, and (5) a foreign national whose entry would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.  Factors to determine whether entry is in the “national interest” include individuals who are critical to the defense, law enforcement, diplomacy, or national security, are involved with the provision of COVID-19 medical care, are involved with COVID-19 medical research, or are necessary to facilitate the immediate and continued economic recovery of the United States.

This proclamation is now in effect through March 31, 2021.

Extension of Immigrant Visa Ban

As detailed in our earlier blog post in April 2020, Proclamation 10014 suspended the entry of all intending immigrants (those seeking to enter the U.S. as a new Permanent Resident) who were outside the U.S. as of Thursday April 23, 2020, who did not already have a valid immigrant visa or a valid travel documents on that date or any date after that allows for travel to the U.S. to seek admission.

Exceptions to the prohibition to entry include (1) Permanent Residents, or green card holders, who live outside the U.S., (2) spouses and unmarried children under the age of 21 of U.S. citizens and (3) foreign nationals, their spouses, and their children under the age of 21 applying for EB-5 Immigrant Investor visas.

Additional exemptions include (4) foreign nationals (their immediate family members) who seek to become permanent residents and work as physicians, nurses, or other healthcare professionals, perform medical research or other research to combat the spread of COVID-19, or perform work “essential to combating, recovering from, or otherwise alleviating the effects of the COVID-19 outbreak”.

This proclamation is now in effect through March 31, 2021.

For additional information on the extensions of P. P. 10052 and P.P. 10014 please see the Department of State’s webpage on the Extension of Presidential Proclamations 10014 and 10052.

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Alka Bahal is a Partner and the Co-Chair of the Immigration Practice of Fox Rothschild LLP, specializing in corporate immigration law and compliance.  Alka is situated in Fox Rothschild’s Morristown, New Jersey office though she practices throughout the United States and at Consulates worldwide.  You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

In March, the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced a new temporary flexibility in complying with requirements related to Form I-9, Employment Eligibility Verification, due to COVID-19.   This temporary policy was originally scheduled to last for 60 days, however, due to ongoing pandemic conditions, USCIS extended the policy several times, most recently until December 31, 2020.  Because of ongoing precautions related to COVID-19,  on December 23, 2020 DHS extended this policy an additional 30 days until January 31, 2021.

This provision only applies to employers and workplaces that are operating remotely. See the original news release for more information on how to obtain, remotely inspect, and retain copies of the identity and employment eligibility documents to complete Section 2 of Form I-9.

E-Verify participants who meet the criteria and choose the remote inspection option should continue to follow current guidance and create cases for their new hires within three business days from the date of hire. Please see COVID-19 webpage for more information.

DHS advises that it will continue to monitor the ongoing national emergency and provide updated guidance as needed.

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Alka Bahal is a Partner and the Co-Chair of the Immigration Practice of Fox Rothschild LLP, specializing in corporate immigration law and compliance.  Alka is situated in Fox Rothschild’s Morristown, New Jersey office though she practices throughout the United States and at Consulates worldwide.  You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

We hear the reports daily.  COVID-19 cases are spiking nationwide.  Hospitals and health care facilities are at maximum capacity.  Even with progress toward the availability of a vaccine, it’s not clear exactly when things will return to a state of normalcy.  Health care employers in many areas of our country continue to have difficulty recruiting physicians to meet patient needs. With the ongoing pandemic, this is more urgent than ever.

One option that may help health care employers when a US physician cannot be recruited is J-1 Waiver sponsorship of an international medical graduate.  Barring unusual circumstances, J-1 waiver sponsorship should result in a full-time employment contract with a highly qualified international medical graduate for a period of 3 years.

For eligible employers, sponsoring a J-1 Exchange Visitor physician who is completing graduate medical education and training in the US is done by filing an application with an appropriate government agency, often a state health department.  Most employer-sponsored J-1 Waiver applications are filed by healthcare providers that are located in Health Professional Shortage Areas (HPSAs) or Medically Underserved Areas (MUAs) or that treat underserved patient populations.  This includes the Conrad 30 J-1 waiver program in which all 50 states participate.  There are also a few region-specific waiver programs such as that of ARC (Appalachian Regional Commission) and the DRA (Delta Regional Authority), and waiver applications can be filed with HHS (Health and Human Services), among other agencies.

“J-1 Waiver Season” generally begins on October 1st with the start of the federal government’s fiscal year.  A few states have already received the currently permissible 30 waiver applications per fiscal year to close out their Conrad 30 programs until next October.  Many other Conrad programs and agencies continue to accept J-1 waiver applications so if you are a health-care employer in need, it may not be too late.

Sponsorship of a foreign national physician through the J-1 Waiver process can help meet patient demand and provide consistency of care over the 3-year commitment period.  Further, during the 3-year period, the physician may become well established in an area and agree to stay beyond the 3-year commitment.  This can greatly benefit an underserved patient population and bring much-needed relief to over-burdened providers.

To learn more about sponsoring a J-1 Exchange Visitor physician for a waiver, please contact me directly with inquiries at cwadhwani@foxrothschild.com or 412-394-5540.

Catherine Wadhwani is a Partner and Co-Chair of the Immigration Practice Group at Fox Rothschild LLP.  For more than 25 years, her practice has focused on business immigration law and compliance, primarily in the health care, general corporate and academic sectors.  Ms. Wadhwani’s practice covers the United States and Consulates worldwide.  She is based in our Pittsburgh, Pennsylvania office.  Please contact Ms. Wadhwani at cwadhwani@foxrothschild.com  or at 412-394-5540.

On November 2, 2020, the Department of Homeland Security issued a Notice of Proposed Rulemaking (NPRM) announcing its plan to drastically change the way USCIS selects the H-1B Cap registrations of U.S. employers.  If the Proposed Rule is finalized in its current form and made effective, this would affect the registration selection process for employers and their prospective H-1B employees.

You may recall that for last year’s H-1B Cap Season, the agency implemented an electronic registration step that preceded the actual filing of H-1B petitions.  This change streamlined the selection process by enabling prospective H-1B petitioning employers the ability to electronically register in the H-1B cap lottery to sponsor a specific individual in lieu of filing a completely prepared H-1B petition as a means of entering the lottery.  Consistent with historical practice, USCIS then conducted a random selection lottery to determine which US employers would be able to sponsor the workers that they needed.  With such a great variety of employers registering for the H-1B Cap lottery and advanced degree exemption, random selection provided a fair chance to all.

A tweak designed to increase the selection of employers registering to sponsor those with a US master’s or higher degree reversed the order of registration selection from prior years. USCIS selected registrations first from the 65,000 regular cap, and afterward registrations under the 20,000 advanced degree exemption, tilting the odds slightly more in favor of registrations for those with advanced US degrees.

Recently, the agency issued an Interim Final Rule to change basic definitions that are central to eligibility for H-1B status. And further, the US Department of Labor issued an Interim Final Rule to significantly increase Level I, II and III wage levels by pushing up the scale within the four levels.

Nobody knows whether registrations will exceed the regular cap and advanced degree exception limits such that a lottery will be necessary in March, but if there is a lottery, USCIS is proposing a significant change to the selection process.  The agency proposes to select H-1B cap registrations with a strong preference for employers who can pay the highest Occupational Employment Statistics (OES) prevailing wage level for the job category (Standard Occupational Classification or SOC code) in the area of intended employment.

More specifically, DHS proposes to “generally” rank and select employer registrations beginning with those who offer to pay the highest wage (Level IV) for the occupation in the geographic area of employment.  In other words, lottery selection would first be made from all registrations indicating a wage offer of Level IV or higher.  If the number of such registrations would exceed the regular cap, a random selection process of only Level IV registrations would be conducted (followed by selection of advanced degree exception Level IV registrations).  Conversely, if not enough registered employers offer a wage that equals or exceeds the Level IV wage, the process of selection would continue in descending order with those offering Level III wages, then Level II and finally, Level I.

Note that under the NPRM, it is proposed that if an employer uses a wage survey or other independent authoritative wage source rather than the OES wage, regardless of any other case factors, such registrations will be grouped in Level I and have the lowest odds of selection.

The NPRM mentions consideration of an alternative selection process whereby random selection would continue–but with a twist.  The registrations would be “weighted according to their OES prevailing wage level, such that, for example, a Level IV position would have four times greater chance of selection than a level I position, a level III position would have three times greater chance for selection than a level I…” and so on.

Overall, the proposed new selection process would benefit employers who are able and willing to pay a Level IV or III wage even though the majority of employers offer a Level II wage (i.e., the NPRM notes that ~54% of registrants offered Level II wages, with ~15% combined offering Levels III and IV wages for a total of ~70% of registrants offering wages above Level I).  While the stated goal of the proposed changes is to incentivize employers to pay higher wages to H-1B workers, and this sounds great at first glance, the NPRM also notes potential downsides to employers like lost profits and increased costs in terms of training and replacement of workers, along with potential lost productivity while that takes place.

Of course, in order to implement the Proposed Rule if it becomes effective, it would be necessary for employers to include additional information in their registrations so that the ranking could be conducted.  This would require a more in-depth analysis of the case prior to registration.

All combined, more than in the past, it’s important that employers who are interested in sponsoring individuals for H-1B status contact qualified legal counsel as early as possible to allow time for a reasoned legal analysis and for potential considerations such as the use of alternative wage surveys and degree evaluations, among other things.

Please contact me directly with inquiries at cwadhwani@foxrothschild.com or 412-394-5540 with questions.

Catherine Wadhwani is a Partner and Co-Chair of the Immigration Practice Group at Fox Rothschild LLP.  For more than 25 years, her practice has focused on business immigration law and compliance, primarily in the health care, general corporate and academic sectors.  Ms. Wadhwani’s practice covers the United States and Consulates worldwide.  She is based in our Pittsburgh, Pennsylvania office.  Please contact Ms. Wadhwani at cwadhwani@foxrothschild.com  or at 412-394-5540.

In March, the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced a new temporary flexibility in complying with requirements related to Form I-9, Employment Eligibility Verification, due to COVID-19.   This temporary policy was originally scheduled to last for 60 days, however, due to ongoing pandemic conditions, USCIS extended the policy several times, most recently until November 19, 2020. Today, November 18, 2020, because of ongoing precautions related to COVID-19, DHS has extended this policy until December 31, 2020.

See the original news release for more information on how to obtain, remotely inspect, and retain copies of the identity and employment eligibility documents to complete Section 2 of Form I-9. Please recall that this provision only applies to employers and workplaces that are operating remotely.

E-Verify participants who meet the criteria and choose the remote inspection option should continue to follow current guidance and create cases for their new hires within three business days from the date of hire. Please see COVID-19 webpage for more information.

DHS advises that it will continue to monitor the ongoing national emergency and provide updated guidance as needed.

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Alka Bahal is a Partner and the Co-Chair of the Immigration Practice of Fox Rothschild LLP, specializing in corporate immigration law and compliance.  Alka is situated in Fox Rothschild’s Morristown, New Jersey office though she practices throughout the United States and at Consulates worldwide.  You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

U.S. Citizenship and Immigration Services (USCIS) recently announced revisions to the naturalization civics test.  The changes will affect those applicants who apply after December 1, 2020.  These applicants will need to take the updated version of the civics test.

Instead of studying 100 questions, applicants must now study 128 possible questions.   The new test is available online here.

USCIS will not change the 60% passing score, but will now require 12 questions answered correctly out of 20 possible questions, instead of the 6 out of ten previously required.

The exception for applicants aged 65 and older who have been Lawful Permanent Residents for at least 20 years will remain the same and require 6 out of 10 correct answers.

USCIS indicates that the revised test more appropriately tests the applicant’s understanding of U.S. history and civics, as per the statutory requirements for the applicant to demonstrate these qualifications for U.S. naturalization.

Should you wish to apply for U.S. naturalization, please contact an attorney with the Immigration Practice group at Fox Rothschild to discuss your eligibility.

Mr. Harley is a Partner in the Immigration Practice Group at Fox Rothschild LLP.  Mr. Harley’s practice covers the United States and Consulates worldwide.  Mr. Harley is based in our Pittsburgh, Pennsylvania office.  He can be reached at mharley@foxrothschild.com or at 412-391-2418.

Just released by USCIS:  The U.S. Department of Homeland Security has announced an interim final rule (IFR) that strengthens the H-1B nonimmigrant visa program to protect U.S. workers, restores integrity to the H-1B program, and better guarantees that H-1B petitions are approved only for qualified beneficiaries and petitioners.

While the H-1B program was intended to allow employers to fill gaps in their workforce and remain competitive in the global economy, it has expanded far beyond that, often to the detriment of U.S. workers. Data shows that the more than a half million H-1B nonimmigrants in the United States have been used to displace U.S. workers, which has led to reduced wages in a number of industries in the U.S. labor market and the stagnation of wages in certain occupations.

Additionally, this IFR restores the guidance contained in the recently rescinded 2010 policy memorandum, “Determining Employer-Employee Relationship for Adjudication of Petitions, Including Third-Party Placements,” with limited clarifications.

This IFR will be effective 60 days after its publication in the Federal Register. USCIS is forgoing the regular notice and comment period to immediately ensure that employing H-1B workers will not worsen the economic crisis caused by COVID-19 and adversely affect wages and working conditions of similarly employed U.S. workers.


This IFR is scheduled to be published tomorrow and as such will take effect on Monday, December 7, 2020 (60 days later).  We will provide more detailed analysis and guidance on this Interim Final Rule in the coming days.  Stay tuned.  You can read the entire text of the IFR here.

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Alka Bahal is a Partner and the Co-Chair of the Immigration Practice of Fox Rothschild LLP, specializing in corporate immigration law and compliance.  Alka is situated in Fox Rothschild’s Morristown, New Jersey office though she practices throughout the United States and at Consulates worldwide.  You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

U.S. Citizenship and Immigration Services (USCIS) recently announced that it will not furlough employees as had been previously scheduled to begin on August 30, 2020.  USCIS had previously pushed back the anticipated furlough in August and now has cancelled it altogether, with the expectation of being able to maintain operations through the end of fiscal year 2020.    The furlough was to include more than 13, 000 employees, or approximately 70% of the USCIS workforce.   The cancellation of the furlough was based on USCIS spending cuts and an increase in revenue and receipts.  USCIS indicated that “Anticipated operational impacts include increased wait times for pending case inquiries with the USCIS Contact Center, longer case processing times, and increased adjudication time for aliens adjusting status or naturalizing.”  For immigration practitioners, employers and beneficiaries unfortunately this means that the unprecedented delays at USCIS will only continue, but for now a crisis was averted.   Should you have any questions or concerns about immigration case processing, please contact one of the immigration attorneys at Fox Rothschild.

The production of certain Employment Authorization Documents (EAD) have been delayed due to to COVID-19.  Today, USCIS announced that due to these production delays, employees may use Form I-797, Notice of Action, with a Notice date on or after December 1, 2019 through and including August 20, 2020 for Form I-9 employment eligibility verification purposes.  Specifically, employees may present Form I-797 informing the applicant of approval of an Application for Employment Authorization (Form I-765) for purposes of satisfying Form I-9, List C #7 as a document that establishes employment authorization issued by the Department of Homeland Security.   This is allowed during the specified time period even though the applicant’s Form I-797 Notice of Action states it is not evidence of employment authorization.  Employees may present their Form I-797 Notice of Action showing approval of their I-765 application as a Form I-9 List C document through December 1, 2020.

Employers and employees should note the I-797 Notice of Action does not serve as a Form I-9 List A document (a document establishing both identity and employment authorization) OR a Form I-9 List B document (a document establishing identity).   For new hire scenarios, an employee who presents a Form I-797 Notice of Action described above must also present a valid List B document.  For existing employees requiring reverification, the employee may present Form I-797 Notice of Action described above for List C purposes.

By December 1, 2020, employers must reverify employees who presented Form I-797 Notice of Action as a List C document.  This means these employees will need to present the employer with new evidence of employment authorization consistent with the Form I-9 List of Acceptable Documents from List A or List C.  It is the employees’ choice whether to present their new EAD or a different document from List A or List C.

Employers are reminded to maintain Form I-9 compliance throughout the COVID-19 public health emergency.

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Ali Brodie is a Partner and the Co-Chair of the Immigration and EB-5 Immigrant Investor Practice Groups of Fox Rothschild LLP and has extensive experience in corporate immigration law and compliance.  Based in Fox Rothschild’s Los Angeles, California and Denver, Colorado offices, Ali’s practice spans the United States and reaches Consulates worldwide.  You can reach Ali at (303) 446-3854 or at abrodie@foxrothschild.com.