REMINDER: H-1B CAP: LOTTERY AND REGISTRATION UPDATES UPDATES

MU Law will be hosting a free webinar for our clients and friends on Tuesday, February 16, 2021 at 2PM Eastern (1PM Central). Interested clients and friends can register for our webinar by clicking on the link below.

REGISTER HERE

Join us for this FREE webinar to learn more about:

-      The H-1B CAP timeline for registration submissions

-      The H-1B Wage-Based Lottery Selection Rule now *canceled*

-      Recap of DOL Wage Rule and promo Alternative Wage Surveys

-      The H-1B Rule Requiring End-Clients to file LCAs or H-1Bs now *canceled*

 

PLEASE JOIN US!

H-1B CAP: LOTTERY AND REGISTRATION UPDATES

MU Law will be hosting a free webinar for our clients and friends on Tuesday, February 16, 2021 at 2PM Eastern (1PM Central). Interested clients and friends can register for our webinar by clicking on the link below.

REGISTER HERE

Join us for this FREE webinar to learn more about:

-      The H-1B CAP timeline for registration submissions

-      The H-1B Wage-Based Lottery Selection Rule now *canceled*

-      Recap of DOL Wage Rule and promo Alternative Wage Surveys

-      The H-1B Rule Requiring End-Clients to file LCAs or H-1Bs now *canceled*

 

PLEASE JOIN US! 

USCIS Delays Wage-Based H-1B Lottery until 2022

In January 2021, the USCIS issued a final rule that would replace the random H-1B cap lottery with a wage-based H-1B selection process. This January 2021 rule was set to go into effect on March 9, 2021 and would apply to the upcoming H-1B cap season (filed in April 2021 for Fiscal Year 2022). However, the USCIS has delayed implementing this rule until December 31, 2021. This means that for the H-1B cap lottery in April 2021, even if there are multiple lottery drawings, none of the drawings will be done under the wage-based selection process.  All lottery drawings in 2021 will be random.  

The new wage-based selection process would select the H-1Bs filed at the highest OES prevailing wage level, starting with Level IV, for the job classification and location of employment.  If there are more than 85,000 Level IV H-1B petitions filed, then the USCIS would hold a lottery just for the Level IV wage petitions.  If there are fewer than 85,000 level IV wage petitions, then the USCIS would run a lottery of the Level III wage petitions for the remaining H-1B spots available. The wage-based selection process then continues for Level II and I, until 85,000 petitions have been selected. 

The USCIS announced February 4, 2021 that the USCIS will delay implementing the wage-based selection process because the USCIS does not have adequate time to develop and test the new wage-based selection process for the 2021 H-1B lottery.  At present, the USCIS plans to have the rule implemented for the H-1B cap season in April 2022 (Fiscal Year 2023).

  

PRESIDENT BIDEN PROPOSED US CITIZENSHIP ACT OF 2021

President Biden has announced the US Citizenship Act of 2021, an immigration plan that could impact many immigration laws.  At this time, President Biden’s plan is not law, but only a proposal.  Although President Biden has promised many changes to immigration laws, these changes will take time to be implemented. 

Once President Biden’s plan is introduced into Congress, either in the House of Representatives or the Senate, as a bill, the bill must successfully pass three steps before it becomes a law:

1. Pass the House of Representatives and the Senate. The bill must be voted for by a majority of the members of the House of Representatives (the House) and the Senate.

2.Conference Committee. If the House and the Senate pass different versions of the bill, the bill must be amended so that there is only one version of the bill. Once the bill has been amended, both the House and Senate must again pass the bill.

3. Be signed by the President. Once a bill is signed by the President, the bill  becomes a law.

As of today, the US Citizenship Act of 2021 introduced by President Biden is still only a plan and must be introduced to Congress as a bill and successfully pass these three steps before it becomes a law. 

FEBRUARY 2021 VISA BULLETIN: ANALYSIS AND PREDICTIONS

The Department of State has just issued the February 2020 Visa Bulletin. This is the fifth 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	01JAN20	01JAN20	C
2nd	C	15JUN16	12OCT09	C
3rd	C	01JAN18	01APR10	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.

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.  This month’s Visa Bulletin included a note confirming that these categories will stay current at least through May, which is the furthest projection that the DOS will make, i.e. 3 months into the future.

India EB-1 moved ahead 3.5 more months, after six months in December and five months in January. Unfortunately, India EB-2 and EB-3 each moved ahead by only about two weeks.  These slow progressions, along with the large number of India EB-2 and EB-3 filings in October, November, and December, probably means that we should only expect 1-4 week movements in India EB-2 or EB-3 for at least the rest of 2021.  This month’s Visa Bulletin included a note confirming that the EB-2 and EB-3 categories should move two weeks on average through the May Visa Bulletin.

China EB-2 and EB-3 again both moved forward by a few weeks, a trend that should continue. China EB-1 showed more progress than expected, perhaps because of declining rates of visa issuance out of the American posts in China.  This month’s Visa Bulletin included a note that says that EB-2 and EB-3 should move 2-3 weeks on average through the May Visa Bulletin.

A LOOK BACK, AND A LOOK AHEAD

Join is for a review of some of the immigration changes that took place in 2020 and a look forward to the changes coming in 2021, specifically for the H-1B cap. Interested clients and friends can register for our webinar by clicking on the link below.

REGISTER HERE

MU Law will be hosting a free webinar for our clients and friends on Tuesday, January 26, 2021 at 2PM Eastern (1PM Central).

Join us for this FREE webinar to learn more about:

• H-1B Cap Basics, Registration Process, and Projections
• NEW RULE: H-1B lottery system, selection by wage
• NEW RULE: DOL Rule Regarding Calculation of Prevailing Wage
• H-1B Specialty Occupation
• H-1B Dependency
• H-1B issues for Staffing Companies and Third-Party Placement
• Third- Party Placement v. In-House work?
• Employer-Employee Relationships
• Cap-Gap for F-1s
• CPT / OPT Maintenance
• Top 10 things H-1B employers can do to stay compliant

PLEASE JOIN US! 

DOL DRAMATICALLY RAISES PREVAILING WAGES

On January 14, 2021 the US Department of Labor (DOL) published its Final Rule regarding the calculation of prevailing wages.  Readers of our blog will note that the DOL previously issued an Interim Rule about calculation of prevailing wages which was struck down by Federal Judges late last year.  The Final Rule published on January 14, 2021 is the updated version of the Interim Rule.

 

Summary of the Final Rule

The Final Rule will dramatically change the calculation of prevailing wage levels resulting in significantly higher prevailing wages.  While the new percentiles are lower than the October 2020 Interim Rule’s percentiles, the new percentiles are still considerably higher than the current percentiles. 

 

Wage Level	Current Percentile	October 2020 Interim Rule Percentile	January 2021 Final Rule Percentile
1	17	45	35
2	34	62	53
3	50	78	72
4	67	95	90

 

The Final Rule applies to prevailing wages applicable to applications for H-1Bs, H-1B1s, E-3s, and Green Cards.

 Transition Periods

The Final Rule attempts to provide employers and foreign nationals an opportunity to adapt to the change in calculations.  For those who did not have an I-140 approval in hand as of October 8, 2020, the transition will occur over an eighteen-month period:

• Stage One, Present to June 30, 2021: Current Percentiles remain in effect
• Stage Two, July 1, 2021 to June 30, 2022: 90% of the Final Rule percentile
• Stage Three, July 1, 2022 and Beyond: 100% of the Final Rule percentile

For those who did have an I-140 approval in hand as of October 8, 2020, and so are applying for a post-six year H-1B extension, the transition will occur over an three and a half year period:

• Stage One, Present to June 30, 2021: Current Percentiles remain in effect
• Stage Two, July 1, 2021 to June 30, 2022:85% of the Final Rule percentile
• Stage Three, July 1, 2022 and Beyond: 90% of the Final Rule percentile
• Stage Four, July 1, 2023 and Beyond: 95% of the Final Rule percentile
• Stage Five, July 1, 2024 and Beyond: 100% of the Final Rule percentile

The American Immigration Lawyers’ Association (AILA) reported that President-Elect Biden’s transition team will issue an immediate 60-day delay to the implementation of this and other last-minute regulations promulgated by the Trump presidency, but how the Biden Administration will move forward remains unknown.

 Alternative Wage Surveys

Alternative Wage Surveys may be accepted by the DOL if the survey meets specific requirements.  Employers concerned about the Final Rule and its implications for their employees may want to consider using an Alternative Wage Survey in place of the DOL’s wage survey.  For more information about which wage surveys may be accepted by the DOL, please contact your MU attorney. 

A LOOK BACK, AND A LOOK AHEAD

Join is for a review of some of the immigration changes that took place in 2020 and a look forward to the changes coming in 2021, specifically for the H-1B cap. Interested clients and friends can register for our webinar by clicking on the link below.

REGISTER HERE

MU Law will be hosting a free webinar for our clients and friends on Tuesday, January 26, 2021 at 2PM Eastern (1PM Central).

Join us for this FREE webinar to learn more about:

• H-1B Cap Basics, Registration Process, and Projections
• NEW RULE: H-1B lottery system, selection by wage
• NEW RULE: DOL Rule Regarding Calculation of Prevailing Wage
• H-1B Specialty Occupation
• H-1B Dependency
• H-1B issues for Staffing Companies and Third-Party Placement
• Third- Party Placement v. In-House work?
• Employer-Employee Relationships
• Cap-Gap for F-1s
• CPT / OPT Maintenance
• Top 10 things H-1B employers can do to stay compliant

PLEASE JOIN US! 

USCIS TO REPLACE H-1B LOTTERY: ONLY H-1s WITH THE GREATEST WAGES WILL BE SELECTED

USCIS has issued a final rule that will replace the H-1B cap lottery with a wage-based selection process.  The new process selects the highest OES prevailing wage level, starting with Level IV.  If there are more than 85,000 petitions filed with a Level IV wage, then the USCIS will hold a lottery just for the Level IV petitions.  If there are fewer than 85,000 that are filed with a Level IV wage, then the USCIS will take all petitions that are filed with Level III wage.  The process then continues for Level II and I, until the full allotment of 85,000 have been selected.  USCIS reserves 20,000 of the 85,000 H-1B slots for master degreed holders from US universities.

The rule will take effect in 60 days, in time for the March 2021 H-1B cap season.  The incoming Biden could theoretically place the regulation on hold.  The rule could also be challenged in court.   

Because we will not know in advance how many will be petitioned under Level IV, III, II, or I, it is impossible to know what wage level will guarantee a chance at an H-1B slot, although a petition filed with a Level IV wage should have a good chance of success. 

Another complicating factor is that it is very difficult to assess how COVID and/or the economy will affect the volume of H-1B cap petitions that will be filed this year.  The USCIS received over 250,000 H-1B cap petitions in both 2019 and 2020. 

JANUARY 2021 VISA BULLETIN: ANALYSIS AND PREDICTIONS

The Department of State has just issued the January 2020 Visa Bulletin. This is the fourth 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	01SEP19	01SEP19	C
2nd	C	01JUN16	01OCT09	C
3rd	C	05DEC17	15MAR10	C

 

Table B: Dates of Filing

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

MU Law Analysis

Both the Philippines and Worldwide (All Other) EB-3 continue to be current.  We expect these categories to stay current for the foreseeable future.  The only constraint to the Philippine EB-3 visas being issued is the capacity at the Embassy in Manila.  It remains to be seen how increasing COVID infection rates bear on embassies capacities.

India had another month defined by variance.  India EB-1 moved ahead five more months, after six months in December.  Unfortunately, India EB-2 and EB-3 each moved ahead by only one week.  These slow progressions, along with the large number of India EB-2 and EB-3 filings in October, November, and December, probably means that no further material progress will happen in India EB-3 for a long time.

China EB-2 and EB-3 again both moved forward by a few weeks, a trend that may continue.  China EB-1 showed more progress than expected, perhaps because of declining rates of visa issuance out of the American posts in China.

MU expects that future Visa Bulletins will continue to have positive news, including slow but continued forward progression in the Chinese and Indian categories.  We also expect the Philippine and Worldwide categories will remain current for the foreseeable future.

 

FEDERAL JUDGE BLOCKS TRUMP ADMINISTRATION’S ATTEMPT TO DISMANTLE LEGAL IMMIGRATION

In a striking rebuke of the Trump Administration’s attempts to dismantle legal immigration, the U.S. District Court for the Northern District of California has set aside both (i) the DHS interim final rule (IFR), Strengthening the H-1B Nonimmigrant Visa Classification Program, and (ii) the DOL IFR, Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States.

This twin-killing of Trump policy does several things:

• It reinstates the prior DOL OES wage survey back to the formula that has been in place for more than a decade.
• It resets H-1B law, allowing third-party placement, three year-approval notices and a fuller range of approvable H-1Bs. 

The Court’s decision, which was issued last night, said that, the Administration, "failed to show there was good cause to dispense with the rational and thoughtful discourse that is provided by the APA's notice and comment requirements.”  MU Law will provide updates as more information is available.

DECEMBER 2020 VISA BULLETIN: ANALYSIS AND PREDICTIONS

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

December 2020 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	01APR19	01APR19	C
2nd	C	01MAY16	01OCT09	C
3rd	C	01NOV17	15MAR10	C

 

Table B: Dates of Filing

The USCIS again announced that it will allow the more favorable Date of Filing chart for I-485 Adjustment of Status. This means that all employment-based immigrants in EB-1, EB-2 or EB-3 can file their I-485s.  However, if they are natives of India or China, their priority date must be earlier than these dates:

Employment Based	CHINA-mainland	INDIA
1st	01NOV20	01NOV20
2nd	01OCT16	15MAY11
3rd	01JUN18	01JAN15

 

MU Law Analysis

Unlike last month, the DOS issued a timely Visa Bulletin for December. 

Both the Philippines and Worldwide (All Other) EB-3 continue to be current.  We expect these categories to stay current for the foreseeable future.  The only constraint to the Philippine EB-3 visas being issued is the capacity at the Embassy in Manila.  It remains to be seen how increasing COVID infection rates bear on embassies capacities.

India had another month defined by variance.  India EB-1 moved ahead six months.  India EB-2 and EB-3 each moved ahead by about 1-2 weeks.  The interesting news was that the Dates of Filing for India EB-3 retrogressed by a year, reflecting the fact that an enormous number of India EB-3 I-485s have been filed in October and November.  This retrogression probably means that no further material progress will happen in India EB-3 for a long time.

China EB-2 and EB-3 both moved forward by a few weeks, a trend that may continue.  China EB-1 showed more progress than expected, perhaps because of declining rates of visa issuance out of the American posts in China.

MU expects that future Visa Bulletins will continue to have positive news, including slow but continued forward progression in the Chinese and Indian categories.  We also expect the Philippine and Worldwide categories will remain current for the foreseeable future.

 

UPDATE: SCHEDULED WEBINAR PLATFORM CHANGED

The platform for MU’s webinar scheduled for Monday, November 16th at 2PM Eastern (1PM Central) discussing the Recap of Changes from the USCIS, DOL, AND DOS has changed from Livestorm to Zoom.

  
If you have already registered for Monday’s webinar, you will receive an email with your invite to the Zoom webinar. If you had not previously registered, you can still join the webinar. Click on the Join the Webinar below.  No registration required.

Join the Webinar

UPDATE: SCHEDULED WEBINAR PLATFORM CHANGED

The platform for MU’s webinar scheduled for Monday, November 16^th discussing the Recap of Changes from the USCIS, DOL, AND DOS has changed from Livestorm to Zoom.

  
If you have already registered for Monday’s webinar, you will receive an email with your invite to the Zoom webinar. If you have not yet registered, there is still time to register by clicking on the link below.

REGISTER HERE

DHS Proposed Rule to Select only the Highest Wages in H-1B CAP

On November 2, 2020, DHS published in the Federal Register its proposed new rule for the 2021 CAP that would give priority to H-1B CAP candidates whose employer promises to pay the highest of the Occupational Employment Statistics (OES) wage levels. 

The OES categorizes wages from Levels I through IV for a particular position in a Metropolitan Statistical Area (MSA). In the H-1B context, the employer then chooses the appropriate wage level based on the experience and complexity of the position and can file a Labor Condition Application (LCA) using the OES wage assigned. 

According to the DHS’s proposed rule, only those H-1B CAP registrations offering the highest OES wage levels would be selected for filing in the 2021 CAP. This means that DHS would first accept Level IV wages, then Level III, etc. 

Keeping with the 2020 CAP changes, the USCIS’s current intent is to continue its electronic pre-registration system, requiring first a registration period of CAP petitions, and a later period of filing. DHS’s proposed rule intends to add a wage level question to its pre-registration form so that only the highest wage levels are selected for filing. 

The Master’s CAP, an allotment of 20,000 H-1Bs designated only for candidates possessing a master’s degree from an accredited U.S. university, is also in place for the 2021 CAP period. 

The proposed rule is currently accepting comments from the public until December 2, 2020, to which DHS will then respond and may alter some elements of the rule.

 

 

RECAP OF CHANGES FROM THE USCIS, DOL, AND DOS

MU Law will be hosting a free webinar for our clients and friends on Monday, November 16, 2020 at 2PM Eastern (1PM Central). Interested clients and friends can register for our webinar by clicking on the link below.

REGISTER HERE

Join us for this FREE webinar to learn more about:

• The new USCIS rule on qualifying for H-1B
• The new DOL rule on wage calculations and alternative wage surveys
• Pending law suits on the new H-1B and wage rules
• The new USCIS rule on the H-1B lottery system
• The Public Charge rule
• The Visa Bulletin
• The new USCIS rule on F-1 duration of status
• Post-Election debrief and a look forward

PLEASE JOIN US!

DOL WAGES: LAWSUITS AND ALTERNATIVE SURVEYS

DOL WAGES: LAWSUITS AND ALTERNATIVE SURVEYS

At our recent webinar, MU attorneys discussed the new DOL wage rule and how it could greatly raise prevailing wages for H-1B petitions and EB-2 and EB-3 green cards.  More on this topic here.   We want to give our clients and friends two updates: 

1.   Lawsuit.  MU along with some clients and the US Chamber of Commerce have been working on a lawsuit against both the DOL and the USCIS.  US Chamber of Commerce press release.  The lawsuit seeks to overturn both the new DOL wage computation used in their OES wage survey, and the three harsh changes to the H-1B definition.  The lawsuit was filed last week and there is a hearing on the case set for November 23.  If successful, the DOL and USCIS regulations could be nullified. 

2.   Alternative Wage Surveys.  The new DOL rule only raises the OES survey, which is the default survey used in H-1B cases, and in PWDs, which are used in EB-2 and EB-3 green card petitions.  The law still allows “alternative surveys.”  An alternative survey is any published or private survey that meets common statistical metrics, is recent, is geographically relevant, and covers the position in question.  

MU has identified several surveying companies that can be used for problematic wages.  As MU works your cases, we will let you know if we think that a survey may be a strategy worth pursuing.