News

The White House just outlined its plans for immigration reform under the Biden Harris Administration this week: https://www.whitehouse.gov/briefing-room/statements-releases/2021/02/02/fact-sheet-president-biden-outlines-steps-to-reform-our-immigration-system-by-keeping-families-together-addressing-the-root-causes-of-irregular-migration-and-streamlining-the-legal-immigration-syst/

While definitely a welcome, those involved with employment-based immigration are still waiting to see how this administration will be handling some of the “midnight” rules and proposals the former administration issued impacting the H-1B process.

One that has drawn a lot of attention is the proposal to allocate new H-1B visa numbers based on wage levels. When an employer files an H-1B petition, an employer promises to pay the foreign national the higher of either the actual wage rate paid to similarly occupied US workers or the prevailing wage for the offered position as determined by the US Department of Labor. Prevailing wages are based on occupational classification, area of employment, and the job requirements and responsibilities within that occupation. There are four wage levels per occupation. The proposed rule was going to allocate H-1B visa numbers based on the wage levels, with the highest wage level receiving preference. This new selection process was to take effect on March 9, 2021.

Today USCIS announced that it will need more time to “develop, test, and implement the modifications to the H-1B registration system and selection process” and therefore the rule will not take effect at least until December 31, 2021. What this means is that the H-1B registration and selection process will therefore not be based on wages. That said, the H-1B registration and selection process will continue as before and it is anticipated that the registration period will start in March 2021. If you have an interest in registering for an H-1B visa for your employees, please make sure you contact an immigration attorney as soon as possible before the registration period is over.

The above information has been provided for educational purposes only. Please contact your Clark Lau LLC attorney to see how the above impacts your circumstances.

Since March 2020, due to COVID reasons, the Trump Administration imposed travel restrictions on individuals if these individuals were in the UK, Ireland, any of the Schengen countries, Iran, Brazil, and China within 14 days of entry into the United States. Certain exceptions, including National Interest Exceptions, existed.

Today, the Trump administration announced that it would be lifting this ban for individuals coming from the UK, Ireland, any of the Schengen countries, and Brazil with an effective date of January 26, 2021. The ban remains for those traveling from China and Iran. Travelers must comply with existing COVID testing requirements and local quarantine requirements.

No sooner had the announcement been made, the press secretary for President-Elect Biden announced that due to health reasons he would not lift the bans.

As with most immigration and travel news of late, much is fluid so please stay tuned! (The above has been provided for informational purposes only.)

The US Department of Homeland Security (DHS) released a new Final Rule (FR) on Friday afternoon that is to be published shortly. This FR is to take effect 180 days from the date of publication and is entitled “Strengthening the H-1B Nonimmigrant Visa Classification Program.” In essence, it broadens the definition of an “employer-employee relationship” and could require end-users of H-1B professionals also to file H-1B petitions. Likewise, on the same day, the Office of Foreign Labor Certification (OFLC) of the US Department of Labor (DOL) and its enforcement branch the Wage and Hour Division (WHD) issued bulletins requiring the same newly defined “employers” also to file and comply with requirements of the Labor Condition Applications where they did not have to do so before.

Regulations require an H-1B professional to be sponsored by a U.S. employer and such employers are defined by “the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee.” The FR changes the definition and broadens it to include those who may meet the common law test of an “employer-employee relationship.” Practically, those entities who have used the services of H-1B professionals may now need to file a separate H-1B petition for them.

The FR indicates that this is only a minor change and it issued to clarify the definition of a “US employer.” According to the proposed rules, there is a list of factors now to consider as to whether an entity is a “US employer” and a separate H-1B petition is required. The DOL followed suit and said that if the DHS is taking this stance on defining an employer-employee relationship, then it too can require these new employers to file corresponding Labor Condition Applications and comply with notice, wage, and benefits requirements that did not exist before. You decide whether this is “minor.”

The proposed regulatory language defining an “employer” follows:

(1) In cases where the H-1B beneficiary does not possess an ownership interest in the petitioning organization or entity, the factors that USCIS may consider to determine if a valid employment relationship will exist or continue to exist include, but are not limited to:

(i) Whether the petitioner supervises the beneficiary and, if so, where such supervision takes place;

(ii) Where the supervision is not at the petitioner’s worksite, how the petitioner maintains such supervision;

(iii) Whether the petitioner has the right to control the work of the beneficiary on a day-today basis and to assign projects;

(iv) Whether the petitioner provides the tools or instrumentalities needed for the beneficiary to perform the duties of employment;

(v) Whether the petitioner hires, pays, and has the ability to fire the beneficiary;

(vi) Whether the petitioner evaluates the work-product of the beneficiary;

(vii) Whether the petitioner claims the beneficiary as an employee for tax purposes;

(viii) Whether the petitioner provides the beneficiary any type of employee benefits;

(ix) Whether the beneficiary uses proprietary information of the petitioner in order to perform the duties of employment;

(x) Whether the beneficiary produces an end-product that is directly linked to the petitioner’s line of business; and

(xi) Whether the petitioner has the ability to control the manner and means in which the work product of the beneficiary is accomplished.

(2) In cases where the H-1B beneficiary possesses an ownership interest in the petitioning organization or entity, additional factors that USCIS may consider to determine if a valid employment relationship will exist or continue to exist include, but are not limited to:

(i) Whether the petitioning entity can hire or fire the beneficiary or set the rules and parameters of the beneficiary’s work;

(ii) Whether and, if so, to what extent the petitioner supervises the beneficiary’s work;

(iii) Whether the beneficiary reports to someone higher in the petitioning entity;

(iv) Whether and, if so, to what extent the beneficiary is able to influence the petitioning entity;

(v) Whether the parties intended that the beneficiary be an employee, as expressed in written agreements or contracts; and

(vi) Whether the beneficiary shares in the profits, losses, and liabilities of the organization or entity.

As with all of the rules that are being published and pushed out during the last days of this current administration, we will need to continue to monitor and see how the incoming Biden-Harris Administration will be handling these rules. It is our understanding that an announcement will be made by the new administration shortly after the inauguration that many of these new rules may be on hold before implementation. Stay tuned!

The above has been provided for educational information only.

The H-1B nonimmigrant visa gives permission to professionals to work for a specific US employer in a specific job. As a minimum requirement, the position offered to the person must require someone to have a degree, and specifically a degree in a particular field. Jobs with duties that can be performed by individuals with a degree in any wide range of fields usually do not qualify for an H-1B. In addition, there must be a US employer and the US employer must offer and pay the individual a “required wage.” This required wage is the higher of the actual wage (i.e., what the employer is paying other similarly situated US workers) or the prevailing wage which is determined by the US Department of Labor (DOL) by comparing the job duties and requirements to the data that it has.

The current administration issued two rules that impact the H-1B program based on wages: (1) an Interim Final Rule (IFR) issued on October 8, 2020 redefining the benchmarks for the DOL’s prevailing wages and (2) another rule giving priority to higher wage positions in the allocation of H-1B visa numbers that is to take effect 60 days from January 8, 2021. While the current administration ends this month, it is unclear whether the rules issued will actually take effect. That said, it is good to keep these two in mind moving forward.

IFR Regarding DOL’s Prevailing Wages

On October 8, 2020, the DOL issued an IFR that redefined the benchmarking of its prevailing wage levels whereby increasing some prevailing wages by $30,000-$40,000 and others to a default wage of over $200,000. On December 1, 2020, two courts struck down the IFR because they were not convinced that the economic conditions during COVID were so severe that the DOL was justified in avoiding a 60-day notice and comment period before having its rule take effect.

Some question whether the DOL will now reissue the rule, given that, in theory, 60 days has passed since it first issued it in October. Stay tuned!

Rule Regarding Wage-Preferences in H-1B Visa Number Allocations

On January 8, 2021, the US Citizenship and Immigration Services (USCIS) published a rule entitled “Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject H-1B Petitions.” This rule would take effect 60 days later, i.e., March 9, 2021.

There has been a shortage of H-1B visa numbers for employers seeking to classify their employees in H-1B status, where the employee has never been in H-1B status before. (Those who have been given a number at least once and whose employers were not colleges, universities, or other exempt organizations are not subject to this requirement again.) As a result, each spring, USCIS holds a lottery for employers to obtain an H-1B number. In 2020, USCIS conducted an electronic registration program which facilitated the lottery process. The rule that has been published addresses this lottery process.

The new process will require employers to provide more details regarding the job offered to the prospective H-1B employee. This information will include the salary, occupational code, job location, and job requirements. Instead of being random, priority will be given to those registrations that show that the offered salary meets or exceeds the highest wage level (there are four prevailing wage levels). If the number of registrations at that wage level exceeds the available number of H-1B visas, then a lottery will be conducted for all of them at that wage level. In theory, therefore, those positions with salaries at or above the Level IV prevailing wage level would be in the best position. If there are not enough registrations with wages at or above Level IV, then registrations with Level III wages would be considered next, and so on.

This rule is to take effect in March, which is when the lottery system should be happening. That said, the incoming administration has put a hold on the implementation of new regulations for 60 days. It is yet to be seen whether the 60 days would mean 60 days from the publication of the rule (January 8, 2021) or 60 days from the time the new administration announces the “hold” which would make implementation of this rule beyond March 2021 and therefore not relevant to this year’s H-1B visa allocation process. Again, stay tuned!

All of the above information has been provided for educational purposes. As with most immigration rules and matter, everything has been very fluid and each person’s set of facts are different. Please consult with Clark Lau LLC attorneys to see how the above impacts your situation.

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). On June 22, 2020, the White House issued an additional executive order banning the issuance of H-1B, H-2B, J, and L nonimmigrant visas (i.e., preventing those individuals outside of the U.S. who do not have such visas to enter the U.S.). Both of these bans were to expire on December 31, 2020. At 5:42PM on December 31, 2020, the White House announced that both of these bans would be extended until March 31, 2021 because the underlying COVID-19 conditions remain.

As a result, the bans, as well as the existing exceptions remain in effect until March 31, 2021.

While we know that a new administration will be in place as of January 20, 2021, it is unclear what particular immigration policies or orders will be implemented right away. COVID-19 remains an ongoing concern and the Biden-Harris Administration has made it clear that it is their top priority. Clark Lau LLC will continue to monitor the changes and will keep you informed. That said, we do not expect sudden changes and believe that the Biden-Harris Administration values stability and predictability so that you can plan accordingly.

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 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/