News

On December 1, 2020, the U.S. District Court for the Northern District of California set aside the Interim Final Rule (IFR) of the U.S. Department of Labor (DOL) which had redefined the four different prevailing wage levels. In response to this order, the DOL’s Office of Foreign Labor Certification (OFLC) announced last night on its website (dol.gov/agencies/eta/foreign-labor) a time line by which it will be updating the FLAG system to incorporate the pre-IFR wage data. It also set forth details on how to seek a redetermination of any prevailing wage determinations issued in accordance with the IFR wage system.

Of note:

• FLAG will be disabled between 6:00AM and 8:30AM (EDT) on Friday, December 4, 2020.
• Employers, however, will not be able to file Labor Condition Applications (LCAs) until after 8:30AM on Wednesday, December 9, 2020 if the OES survey data is the prevailing wage source.
• LCAs using other wage sources can be filed after 8:30AM on Friday, December 4, 2020.
• Employers can continue to file prevailing wage applications.
• OFLC however will pause processing prevailing wage applications until after 8:30AM on December 15, 2020.
• For those prevailing wage determinations issued using the IFR wage data, employers may seek a redetermination between now and 1/4/2021 despite the usual 30-day deadline.

The above has been provided for informational purposes only. Stay tuned for more updates.

This afternoon, a judge set aside both the Interim Final Rules (“IFR”) issued by the U.S. Department of Homeland Security (“DHS”) and the U.S. Department of Labor (“DOL”). The DHS IFR was to take effect December 6, 2020 and it would redefine the requirements and parameters of the H-1B program. The DOL IFR took effect immediately on October 8, 2020 and redefined the different wage levels used in determining what an employer would be required to pay employees in the H-1B, H-1B1, and E-3 visa programs and in employment-based permanent residency (green card) programs. (See our post of October 7, 2020.)

A judge in the U.S. District Court for the Northern District of California set aside both rules stating that the government “failed to show good cause to dispense with the rational and thoughtful discourse that is provided by the APA’s notice and comment requirements.” [The APA (the Administrative Procedure Act) sets out the rules, including a notice and comment period, by which the federal government must follow to enact its rules. The current administration indicated that the dire situation of the economy was sufficient cause to by-pass the process; the court disagreed.]

With the IFRs set aside, in theory, this would mean that employers could once again rely on wage levels that were in place pre-October 8, 2020. We are monitoring how the government will react and what processes will be in place to comply with the court order. Stay tuned!

US employers seeking to hire non-US workers must ensure that these individuals have the proper employment authorization from the US government. There are a number of “visas” available for such purposes but the H-1B visa is the most popular. The H-1B visa requires an employer to demonstrate that the position offered to the individual is one that requires at least a university degree in a specific field of study (generic liberal arts degrees or even general business degrees do not qualify), that the individual have the degree or its equivalent in work experience, and that the employer is paying the higher of either the actual wage it is paying other similarly situated US workers or the prevailing wage as determined by the US Department of Labor (DOL). (Of note is that on October 8, 2020, the DOL restructured its wage levels without notice whereby effectively increasing the wage for most occupations by $30,000-40,000. Where there is a lack of sufficient data according to the DOL’s calculations, thousands of occupations defaulted to a wage of $208,000 per year. Two separate lawsuits have been filed to challenge this restructuring.)

Due to the popularity of the H-1B visa, there has been a shortage and individuals who have never had an H-1B visa would need their employer to participate in a lottery each spring for such a visa. The rate of success has been roughly 30-35%. Up to now, the lottery has been conducted in two rounds – one for those with U.S. advanced degrees and then the general pool. Other than the degree criterion, the lottery has been random. Today, the Department of Homeland Security proposed a rule that would allocate H-1B visas according to wage levels, with a preference for the higher levels first. For now, this is just a proposal. Stay tuned for the outcome after the notice and comment period.

The above has been provided for educational purposes only. To see how this applies to your situation, please contact your Clark Lau LLC attorney. Also, this does not apply to those individuals who have already been counted in the H-1B lottery.

On October 6, 2020, the U.S. Department of Labor (DOL) announced that it will be publishing an Interim Final Rule (IFR) on October 8, 2020 which will impact the prevailing wage levels used in H-1B, PERM, and other programs.

What is an IFR?

The contents of proposed regulations can be shared with the public as a “proposed rule” allowing for a notice and comment period. Where the government deems that it has good cause to skip the notice and comment period, it will issue an IFR that takes effect immediately.

What will this IFR do?

It will change the definition of the four levels of the prevailing wage requirement.

What’s a “prevailing wage?”

When an employer seeks to hire a foreign national in the U.S., employment-sponsored options often require the employer to pay the individual the higher of either the “prevailing wage” or the actual wage. The actual wage is what the employer pays similarly situated U.S. workers, while the “prevailing wage” is a figure determined by the DOL. This requirement is present for the popular H-1B visa program, as well as the H-1B1 for Singaporeans and Chileans and E-3 for Australians, all of which require the individual to be offered and qualify for a “specialty occupation.” Likewise, employers sponsoring an individual for legal permanent residency (commonly known as a “green card”) through a labor market test route (referred to as the PERM process) must advertise and offer the position at or above the prevailing wage. Prevailing wages take into consideration the occupation, the job location, the job responsibilities, and the job requirements. There are four wage levels within each occupation, with each correlating to different levels of responsibilities and requirements of an occupation.

Why is the DOL changing the wage levels?

According to the IFR that the DOL is publishing, it reports that the current wage levels are too low and are not accomplishing the reason why the Immigration and Nationality Act (INA) requires prevailing wages in the first place, i.e., “to protect U.S. workers’ wages and eliminate any economic incentive or advantage in hiring foreign workers.” The DOL bases its conclusion on a number of factors, including the fact that large companies are paying higher salaries than the prevailing wages and the high number of Americans who study in the STEM field but end up not working in those fields. While larger companies are paying higher wages, DOL is concerned that other employers are using prevailing wage standards to keep salaries low or to choose foreign workers over U.S. workers.

How do the changed wage levels compare to the current system?

While DOL is not going to change the source of its wage data, it will set the different levels at different percentiles. There are four wage levels. Prior to October 8, 2020, Level 1 is set at the 17^th percentile, while the new system will have it set at the 45^th percentile. Level 2 is set at the 34^th percentile and will be increased to the 62^nd. Level 3 is set at the 50^th and will be increased to the 78^th. Level 4 is set at the 67^th and will be increased to the 95^th. For example, a school hiring an entry level high school teacher in Boston would have a prevailing wage that is $24,090 higher per year; for an architect, it would be $27,685 higher; and for a software engineer, it would be $36,234 higher.

When do these take effect?

These changes take effect immediately on October 8, 2020. The changes do not impact cases that have prevailing wage determinations already issued by the DOL nor cases where the Labor Condition Application that carries a prevailing wage attestation has already been certified. These will impact new cases moving forward.

What to expect next?

As you can imagine, there will be challenges over the process and over the substance of the changes. Additionally, please note that the U.S. Department of Homeland Security has issued their own IFR making changes to the H-1B program itself. Stay tuned for news on those rules.

The above has been provided for informational purposes only. Contact your Clark Lau LLC attorney to see how this applies to your situation.

Clark Lau LLC partner Magaly Cheng shares with national immigration bar on National Hispanic Heritage Month:

https://thinkimmigration.org/blog/2020/09/17/honoring-latinx-heritage-and-its-champions/

On June 22, 2020, the White House issued a Presidential Proclamation that extended a ban against immigrant visa issuance until at least December 31, 2020. It further banned the issuance of nonimmigrant worker visas in the H-1B, H-2B, L-1A, L-1B, and certain J-1 categories until December 31, 2020.

Clarification on Visa Renewals

What was not clear was how this would impact those individuals who were already in the United States in any of one of the banned statuses and whose visa stamp was valid until at least June 24, 2020 but would expire before December 31, 2020.

Right after the Presidential Proclamation was issued, the State Department, which is the federal agency that is responsible for issuing visas indicated in an FAQ that a renewal of a visa would not be possible for such individuals. As recently as today, the State Department clarified its interpretation of the Presidential Proclamation. Yes, visa renewal is possible. Again, for an individual who was (a) in the United States at least up to June 24, 2020, (b) whose visa was valid as of June 24, 2020, and (c) whose visa expires before December 31, 2020, this individual is not subject to the visa ban and can apply for a new visa at US Consulate abroad. Please note that this is subject to whether the US Consulate is open and whether appointments are available.

National Interest Exception for H-4, L-2, and J-2

The State Department also announced that the dependents of H-1B, L-1A, L-1B, and J-1 nonimmigrant visa holders who are not covered by the Presidential Proclamation may seek the appropriate dependent visa (e.g., H-4, L-2, and J-2) before December 31, 2020. (A literal reading of the Presidential Proclamation would have meant that such dependents could not obtain the appropriate visa to enter the US.) Again, this is subject to whether the US Consulate is open and whether appointments are available.

Please also note that other travel restrictions could still apply.

As you can see, the immigration environment is full of changes and uncertainties. Before making any travel plans, please ensure you have the latest information. The above was provided for educational purposes only. Please contact your Clark Lau LLC attorney to see whether the above applies to your situation. As always, stay tuned!

As colleges and universities develop plans for the fall semester, holding courses online is the predominant option that schools are taking. For international students, i.e., those who are not U.S. citizens, are not legal permanent residents, or not minor dependents of those here on work visas, this could have be (and was) a problem. These students are allowed to be in the U.S. as F-1 (international students of academic programs) and M-1 (international students of vocational programs) and only for that purpose. Buried in the regulations governing what it means to maintain their legal status in the U.S. are rules governing how many (or how few) online courses they could actually take.

While the government made accommodations at the start of the COVID-19 pandemic, on July 6, 2020, the Immigration and Customs Enforcement (ICE) branch of the U.S. Department of Homeland Security issued unofficial guidance indicating that, for Fall 2020, if a student’s program was completely online, that student would not be allowed to remain in the U.S. This news reverberated throughout higher education and triggered the first of many legal challenges against the government. Notably, Harvard University and the Massachusetts Institute of Technology joined forces and filed a lawsuit the next week against the government arguing that their new policy was “arbitrary and capricious,” which is the standard by which a government agency could not act. Today, before oral arguments were even held, the judge announced that both sides had come to a settlement, i.e., that the government would rescind its ICE guidance and keep things as they were prior to the announcement of the guidance. This would mean for now that international students in F-1 and M-1 status can legally remain in the U.S. even with online courses.

Please note that the above has been provided for informational purposes only. Please contact your Clark Lau LLC attorney to see whether the above applies to you. Stay tuned!

When the COVID-19 pandemic hit the United States, most colleges and universities were on spring break. Students had to cut their plans short, pack up their belongings, and move back home. As the weeks passed, colleges and universities responded with online classes.

For international students, i.e., those who are not U.S. citizens, are not legal permanent residents, or not minor dependents of those here on work visas, this posed a problem. These students were allowed to be in the U.S. as F-1 (international students of academic programs) and M-1 (international students of vocational programs) and only for that purpose. Buried in the regulations were rules governing how many (or how few) online courses they could actually take. The government made accommodations. But now, as we face Fall 2020, the government is issuing new rules that are not as accommodating.

The Immigration and Customs Enforcement (ICE) branch of the U.S. Department of Homeland Security issued unofficial guidance today indicating that, for Fall 2020, if a school’s program is completely online and students are only attending online courses, the students will not be allowed to remain in the US in the F-1 or M-1 status. The official rules will be published shortly.

Highlights include the following:

• Students attending schools operating entirely online may not take a full online course load and remain in the United States.
  1. For those who are hoping to enter the US, the State Department will not issue visas for such students and the US Customs and Border Protection officers will not allow such students to enter the US.
  2. For those already in the US, they will not be allowed to remain, unless they transfer to schools with in-person classes.
• Students attending schools operating under normal in-person classes are bound by existing rules; these students are only allowed to take a maximum of one class or three credit hours online.
• Students attending schools adopting a hybrid model, that is, a mixture of online and in-person classes, will be allowed to take more than one class or three credit hours online. The assumption is that these students will not be able to take all classes on-line. ICE specifically indicates that “These schools must certify through the Form I-20, ‘Certificate of Eligibility for Nonimmigrant Student Status,’ that the program is not entirely online, that the student is not taking an entirely online course load for the fall 2020 semester, and that the student is taking the minimum number of online classes required to make normal progress in their degree program.” F-1 students in English language training programs or M-1 students are not permitted to enroll in any online classes.

What is not addressed is whether the above impacts those students who have already graduated and who are remaining in the US pursuant to either Optional Practical Training (OPT, the one-year period of post-graduate training) or STEM OPT (the additional two-years post-OPT for students who have received a STEM degree in the US and whose employer has signed up for the E-Verify program). Our reading of the guidance is that this does not impact such individuals. Such individuals should be able to continue to remain in the US and should be able to continue to work in the US pursuant to their OPT or STEM OPT.

*** Please note that we have seen USCIS continue to challenge whether OPT/ STEM OPT students have maintained their status by asking for documentation to show that they have not exceeded their allotted dates of unemployment. We have also seen USCIS ask for the training plan associated with the STEM OPT program. ***

ACTION ITEM: All F-1 and M-1 students should contact their Designated Student Officer (DSO) as soon as possible to see whether the new restrictions on remaining in the US apply to them. Even if they are allowed to stay, the DSO will need to issue an updated Form I-20 to prove that the student meets the new requirements.

For complete details see:

https://www.ice.gov/doclib/sevis/pdf/bcm2007-01.pdf

Please note that the above has been provided for informational purposes only. Please contact your Clark Lau LLC attorney to see whether the above applies to you. Stay tuned!

H-1B, H-2B, J, and L NONIMMIGRANT VISA EXECUTIVE ORDER

On April 22, 2020, the White House issued an Executive Order that limited entry into the United States of certain individuals seeking to become legal permanent residents (i.e., green card holders). Since then, there has been talk regarding additional limitations for foreign nationals seeking employment in the United States, even on a short-term basis. On June 22, 2020, the White House issued this executive order.

What does this Executive Order do?

Citing high unemployment rates due to COVID-19, this executive order continues the restrictions of the prior executive order regarding certain immigrants.

In addition, the White House believes that additional measures need to be taken because “the present admission of workers within several nonimmigrant visa categories also poses a risk of displacing and disadvantaging United States workers during the current recovery.” (Unlike green card holders who would have unrestricted employment authorization, individuals entering the United States under certain nonimmigrant visa categories would have employment authorization for a very specific purpose, usually for a particular employer and a particular job.) According to the White House the “entry of additional workers through the H-1B, H-2B, J, and L nonimmigrant visa programs, therefore, presents a significant threat to employment opportunities for Americans affected by the extraordinary economic disruptions caused by the COVID-19 outbreak.”

To whom does it apply?

This executive order applies to the following individuals who are currently outside of the United States and seeking to the enter in the following nonimmigrant visa classifications:

• H-1B (specialty occupation classification where the job requires at least a bachelor’s degree in a very specific field of study);
• H-2B (non-agricultural seasonal workers);
• J-1 (specifically of the following classes: intern, trainee, teacher, camp counselor, au pair, or summer work travel program)
• L-1 (individuals who have been working abroad for an affiliate entity, either are senior level managers or executives or have specialized knowledge of a company’s products/procedures, and are being transferred temporarily to the United States);
• Individuals accompanying any of the above (i.e., spouse and children); and
• Those already impacted by the prior order (i.e., immigrants)

And only if all of the following conditions are met:

• The individual is outside of the U.S. (to be clear - those who are already in the United States in any of the above nonimmigrant visa categories are not subject to the executive order);
• The individual does not already have a nonimmigrant visa stamp in his/her passport at the time this order takes effect; and
• The individual does not have an official travel document other than a visa (such as a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid at the time this order takes effect or issued on any date thereafter that permits the individual to enter the U.S.

To whom does it not apply?

The executive order does not apply to those individuals already in the United States. The executive order also does not apply to anyone within the following categories:

• Lawful permanent resident of the United States (i.e., green card holders);
• Spouse or child of a US citizen;
• Individual entering the U.S. “to provide temporary labor or services essential to the United States food supply chain;”
• Individual 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 here include “critical to defense, law enforcement, diplomacy, or national security of the United States;” “involved with the provision of medical care to individuals who have contracted COVID-19 and are currently hospitalized;” “are involved with the provision of medical research at United States facilities to help the United States combat COVID-19;” or “are necessary to facilitate the immediate and continued economic recovery of the United States.”

The order does not mention other nonimmigrant visa categories such as TN, H-1B1, E-3, E-1, E-2, or O-1. The logical conclusion is that such nonimmigrant workers are not impacted by this current executive order.

When does it take effect?

The executive order takes effect at 12:01AM on June 24, 2020.

When does it expire?

The executive order expires on December 31, 2020, and may be continued as necessary.

Are there other concerns?

The executive order also directs the Secretary of Health and Human Services to provide guidance to the Secretary of State and Secretary of Homeland Security for implementing additional health measures. Further, the order directs the Secretary of Labor to work with the Secretary of Homeland Security to consider developing rules or take action to ensure that individuals seeking admission or a benefit pursuant to certain employment-based immigrant visas or the H-1B visa does not disadvantage U.S. workers. This includes taking additional measures regarding the efficient allocation of H-1B visa numbers so as not to disadvantage U.S. workers.

Please also be mindful that other travel restrictions are still in effect, including those that restrict entry into the United States if one has been in China, Iraq, Brazil, Ireland, the U.K., and any of the Schengen countries within the last 14 days. The above executive order should be read in the context of other restrictions and practical concerns such as the current closure of U.S. Consulates abroad that prevent one from even applying for an immigrant or nonimmigrant visa.

The above information has been provided for educational purposes only. Please contact your Clark Lau LLC attorney to determine if and how the above applies to you.

On June 18, 2020, the U.S. Supreme Court issued a decision ruling that the U.S. Department of Homeland Security’s termination of the Deferred Action for Childhood Arrivals (DACA) program was “arbitrary and capricious” under the Administrative Procedures Act (APA). (This is the standard by which the APA evaluates the legitimacy of government agency.)

As background, the Obama Administration issued a memorandum on June 15, 2012 that would defer any actions regarding the removal of individuals who did not have legal permission to remain in the U.S. Such individuals would have to meet certain requirements, such as having arrived in the U.S. before the age of 16; applying under the age of 31; having continuously resided in the U.S. since June 15, 2007; and attending school, having graduated, having obtained a certificate of completion from high school, having obtained a General Educational Development (GED) certificate, or being an honorably discharged veteran of the Coast Guard or Armed Forces of the U.S. If they however were convicted of a felony or a significant misdemeanor (two or less misdemeanors would have been acceptable) they would not be eligible. These individuals would be allowed to apply for employment authorization for two years at a time. This program did not offer permanent residency nor a path to U.S. citizenship. Family members could not benefit either. In 2017, the current Administration challenged the legitimacy of the program and the Department of Homeland Security (DHS) rescinded the program in September. Through a series of legal actions the question of DACA’s legitimacy arrived at the U.S. Supreme Court.

The decision on June 18, 2020 criticized DHS for not following established requirements for government accountability under the APA. This includes considering whether DHS should continue a lesser part of the program and any reliance interests created by the DACA program. The Supreme Court however did not address whether DACA was a good program as a matter of policy or not. In fact, the decision indicated that DACA may be rescinded, if done properly.

For now, the DACA program can continue but this does not mean that DHS may not revisit rescinding it in the future. It also does leave open the question of whether Congress would take action and take the question out of the Administration’s hands.

The above has been provided for information purposes only. If you have any questions, please feel free to contact Clark Lau LLC to see whether this applies to you.