On January 14, the Department of Labor published a revised final rule increasing the calculation of wage rates for E-3, H-1B, H-1B1 and PERM programs. This rule is largely based off of a prior interim final rule that was published on October 8, 2020 but was struck down by a federal court in December 2020. Like the October 8th rule, the new final rule seeks to dramatically increase the percentile wage used in DOL Occupational Employment Statistics (OES) wage levels for Labor Condition Applications (“LCAs”) and Prevailing Wage Determinations (“PWDs”), but the increase is slightly less dramatic than the October 8th rule.
|Current Versus New Wage Levels|
|Wage Level||Current Percentile||New Percentile|
Unlike the October 8th rule, where the new wage rates took effect immediately, the new rule provides a transition and a multi-phase wage adjustment period. The transition period begins on the rule’s effective date and runs through June 30, 2021. LCAs and PWDs that are issued during the transition period will use the current wage rate. Thereafter, in subsequent years, the wage levels will be increased based on the schedule outlined in the final rule.
The new rule takes effect on March 15, 2021. However, as provided by the transition period, new LCAs and PWDs that are issued between now until June 30, 2021 will remain subject to current wage levels. Critics of the new rule assert that the significant wage level increases do not reflect market wages or satisfy the DOL’s own definition for prevailing wage. Litigants who were successful in setting aside the October 8th rule have announced plans to challenge this new rule. In addition, upon taking office on January 20th, President-Elect Biden’s Administration has indicated that it will issue a memorandum delaying the implementation of “midnight regulations” for 60 days. Given the planned legal challenge and the incoming administration’s intention to delay implementing the outgoing administration’s last-minute regulations, it is likely that the status quo will be maintained, and we will continue to be able to utilize the existing wage rates for the foreseeable future.
Our firm will continue to closely monitor this regulation and its implementation. We will provide updates as they arise.
The U.S. Centers for Disease Control and Prevention announced on January 12, 2021, that all travelers flying to the United States from international destinations must show proof of a negative coronavirus test before boarding their flight. Travelers must get a viral test within three days of their international flight to the U.S. This policy will take effect on January 26, 2021.
While the CDC acknowledges that a negative coronavirus test does not eliminate all risks while flying, CDC Director Robert R. Redfield said that, “it can make travel safer, healthier, and more responsible by reducing spread on planes, in airports, and at destinations.”
Before being permitted to board an international flight to the U.S., all passengers will be required to show proof of a negative test. If a passenger does not provide documentation of a negative test or proof of recovery from COVID-19, the airline must deny that passenger permission to board.
International air travel to the United States has been severely hampered by the coronavirus pandemic. Despite seeing an uptick in flights to the U.S. since June, officials and airlines alike are concerned about the spread of the virus as well as the lasting damage to airlines. There is hope that this new policy will both slow the exponential spread of COVID-19 while reviving a severely damaged industry.
We will closely monitor the roll out of this new travel policy and again remind clients to pay close attention to any new travel restrictions when considering new international travel, and unfortunately it remains that the best way to ensure our clients do not get “stuck” somewhere along the way is to limit or eliminate travel. And as with everything implemented by the current administration while on its way out the door, we do expect the new administration to look closely at these new rules and although they may consider delaying their effective start date to give them time to review, such a policy more closely aligns with the science associated with Covid-19 so we would not expect this proposal to be rejected completely.
On January 13, via a Broadcast Message, the Student and Exchange Visitor Program (SEVP) announced a new unit, the OPT Employment Compliance Unit, that will be responsible for compliance matters relating to wage, hours, and compensation within OPT, OPT extension, and Curricular Practical Training Program (CPT). Among its functions, the new unit will recommend investigations of employers and students to ensure compliance with OPT programs, uncover evidence of unlawful practices within OPT programs and notify the appropriate authorities, evaluate whether employers are adhering to the attestations and trainings required under the OPT extension, which will include on-site visits, and publish an annual report on the impact of OPT programs on US workers.
On August 3, 2020, USCIS issued a rule that would have increased immigration filing fees by an average of 20 percent, while some fees would have risen by as much as 85% for temporary, seasonal agricultural workers. The increased fees were temporarily blocked by the U.S. District Court for the Northern District of California. On December 28, 2020, the U.S. Federal Government voluntarily moved to dismiss its appeal of that decision in the Northern District of California.
This unexpected decision by USCIS means that the proposed increase in immigration filing fees will not go into effect. USCIS originally stated that the increases in the fees were necessary to continue operations. The coronavirus pandemic led to a sharp decline in revenue globally and at USCIS, who, at one point considered furloughing approximately 70 percent of its staff. At this time, USCIS has not provided any plans to increase filing fees anytime soon and at the same time it is now receiving significant additional revenue from increased premium processing fees.
A December 15, 2020 Stakeholder Message from the USCIS Public Engagement Division affirmed the numerous reports of significant delays in the processing of receipt notices for applications for benefits that were filed at USCIS lockboxes. In explaining the delays, USCIS referenced a significant increase in filings in recent weeks and capacity restrictions due to the coronavirus pandemic. On January 8, 2021, a USCIS Lockbox Updates news alert noted that the delays had continued, noting a possible four-to-six-week delay in receiving receipt notices. On January 12, 2021, an alert on the CIS Ombudsman Office Case Assistance Page provided an update on the processing times. According to said alert, USCIS is now taking as long as 8 to 9 weeks to issue receipt notices for some applications and petitions, and that USCIS is unable to expedite their issuance. The Ombudsman alert is linked here. Please contact a member of our team if you have any questions regarding the recent USCIS receipt notice issues.
The U.S. Department of Homeland Security has temporarily expanded the ability of consular officers to waive the in-person interview requirement for individuals applying for a nonimmigrant visa in the same visa category. Previously, only those applicants whose nonimmigrant visa expired within 12 months were eligible for in-person interview waiver; that timeframe has been expanded to 24 months. This provisional policy is in place until March 31, 2021. Travelers should carefully review the applicable U.S. Embassy’s or Consulate’s website for detailed information on visa services currently available; eligibility information and instructions on applying for a visa without an interview is also available.
Although we start the year with significant uncertainty as to whether there will be a new lottery system in place yet again this year, and with the current administration seeking to undermine the program as it exits the White House, we know that our clients have significant technical needs that are well met by highly educated and enthusiastic foreign born professionals. We have been maintaining a database of possible H-1 filings since last year’s cap season, and we will begin our outreach with clients next week to confirm which candidates are still interested and eligible to be included in the H-1B lottery. At the same time we provide our list and updated information, we will be asking clients to let us know of individuals they have hired in the last 10 months that may benefit from holding an H-1B status. To learn more about this coming H-1B cap season please also consider signing up for our webinars hosted by our Managing Partner, David Zaritzky Brown – see more details below.
It is that time of year again, when companies look to support existing employees and new hires in their application for H-1B. We have seen unprecedented changes in business immigration in the last few years, and there is a strong likelihood of additional changes coming soon – including the Fairness for High Skilled Immigrants Act – all of which suggest maintaining stable non-immigrant status is an important part of any company’s immigration strategy. Join Managing Partner, David Zaritzky Brown, as he walks through what to expect for this upcoming H-1B Cap season and how our firm will process applications. A must attend for HR and employees who are going through the process.
Additionally, David will spend a few minutes providing key immigration updates related to Trump’s most recent maneuvers and Biden’s likely first steps post inauguration. The core program will be a quick 30 minutes and leave ample time for Q&A.
If your company or fellow HR colleague can benefit from such a session, please register, and invite your friends.
Once registered, you will receive an email with a link to use to join the video chat on the day of the event. Please note: This link should not be shared with others; it is unique to you. If you ever misplace the invitation link, simply visit the webinar schedule on our website to join the LIVE chat.
If you have contacts or colleagues who may benefit from our talks, you are welcome to invite them to join our VIP invitation list by sharing our webinar schedule where they can subscribe for further information.
Don’t miss these opportunities to increase your knowledge on important immigration issues!
Thank you and we look forward to having you at the event.
The Team at Brown Immigration Law
** This newsletter/memo is provided for informational and discussion purposes only. It does not act as a substitute for direct legal contact on an individual basis **