IMPLEMENTATION OF DOL RULE INCREASING PREVAILING WAGES DELAYED

The US Department of Labor (DOL) has delayed the new rule which would change the method for calculating prevailing wages for 18 months. 

In October 2020, the DOL announced an Interim Rule which changed the computation of wage levels and dramatically increased prevailing wages.  The October 2020 Interim Rule was later struck down by the courts, but was later re-issued as a Final Rule in January 2021. 

On January 14, 2021 the DOL published its Final Rule regarding increases in prevailing wages for H-1B, H-1B1, E-3, and Green Card cases. You can find our blog post summarizing the Final Rule here.  

The Final Rule was initially set to take effect May 14, 2021 and wages issued after July 1, 2021 would be impacted. However, the DOL has postponed the effective date of the Final Rule by 18 months until November 14, 2022. The DOL delayed the start of the transition period to the new prevailing wage levels from July 1, 2021 to January 1, 2023. 

The DOL is implementing this delay to allow for more time to fully analyze the legal and policy issues raised by the rule, as well as to validate the prevailing wage data. This official delay is expected to be effective on March 22, 2021.

APRIL 2021 VISA BULLETIN: ANALYSIS AND PREDICTIONS

The Department of State has just issued the April 2020 Visa Bulletin. This is the seventh Visa Bulletin of Fiscal Year 2021. This blog post analyzes this month's Visa Bulletin.

Visa Bulletin

Table A: Final Action Dates -- Applications with these dates may be approved for their Green Card (Permanent Residency card) or Immigrant Visa appointment.

Employment- based	All Other	CHINA	INDIA	PHILIPPINES
1st	C	C	C	C
2nd	C	01SEP16	01MAY10	C
3rd	C	15MAR18	01SEP10	C

 

Table B: Dates of Filing

The USCIS will be using the Table A: Final Action Dates chart for I-485 employment-based filings. A beneficiary must be current on the above Table A chart in order to file their I-485, Adjustment of Status applications.  USCIS Adjustment of Status page.

MU Law Analysis

Both the Philippines and Worldwide (All Other) EB-3 continue to be current. Our opinion remains that these categories will stay current for the foreseeable future.

India EB-1 became current, which led to extra visas will flowing down to India EB2 and EB3.  Indeed, India EB-2 moved ahead almost a year and half into May 2011.  EB-3 also jumped up. It is now is 2014.  We could see favorable processing times for the rest of 2021.

China EB-2 and EB-3 again both moved forward, this time by months, a trend that should continue.  China EB-1 is now current reflecting the paucity of visas that were issued under the last year of the Trump presidency. 

PUBLIC CHARGE RULE RESCINDED

USCIS announced on March 9 that it will no longer apply the Public Charge Final Rule.  The Public Charge Final Rule was published in October 2019 and subjected all I-485 applicants to a wealth test, requiring applicants to list and document all assets and debts on Form I-944.  Effective March 9, I-485 applicants no longer need to submit Form I-944.  

USCIS will not review any I-944 forms already submitted, and applicants can disregard any aspect of a Request for Evidence of Notice of Intent to Deny that requests information related to the Public Charge Final Rule.  

The Public Charge Final Rule had also required nonimmigrant visa applicants to answer questions about the receipt of public benefits on applications for extension of stay or change of status.  Nonimmigrant visa applicants now no longer need to answer these questions relating to the receipt of public benefits.  

USCIS will revert to the prior guidance outlined in the 1999 Interim Field Guidance in place prior to the introduction of the Public Charge Final Rule. 

H-1B REGISTRATION WINDOW

Beginning March 2, 2021, H-1B Electronic Registration for cap-subject petitions will take place. While this marks the second year that USCIS has utilized electronic registration, the process remains much the same as last year. 

Employers that did not participate in last year’s electronic registration process will need to first create an H-1B Registrant account on MyUSCIS.  Employers that did participate last year will be able to utilize their existing account.  

The registration window will open at 12:00pm Eastern Time on March 9, 2021 and end at 12:00pm Eastern Time on March 25, 2021. During this window, all potential beneficiaries must be registered by their employer to be considered for H-1B selection in the cap. 

USCIS intends to inform employers by March 31, 2021 which beneficiaries were selected and full H-1B petitions may be filed no earlier than April 1, 2021. While the registration process only requires minimal information about each beneficiary, the beneficiary must meet all eligibility requirements at the time of filing the full H-1B petition. 

Please contact MU Law should you have any questions or require any assistance in filing H-1B cap-subject registrations.