• Ashenberg Law Group

November 2020 Newsletter

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IMMIGRATION UPDATES

1. November 2020 Visa Bulletin: Advancement in Most Employment-based Categories; No Movement in Family-based Categories

The U.S. Department of State’s (DOS) released the Visa Bulletin for November 2020, which shows advancement in most employment-based categories, and no movement in family-based categories. The cutoff dates for issuance of employment-based immigrant visas are as follows:

  • EB-1: China and India advanced 6 months to December 1, 2018. All other countries are current.

  • EB-2: China advanced 7 weeks to April 22, 2016; India advanced 3 weeks to September 22, 2009. All other countries are current.

  • EB-3 Professional and Skilled Workers: China advanced 3 months to October 1, 2017; India advanced 6 weeks to March 1, 2010. All other countries are current.

USCIS will accept adjustment of status applications for F2A Spouses and Minor Children of Green Card Holders based on the “Final Action Dates” charts, and all other family-based cases and all employment-based cases based on the “Dates for Filing” charts.

The November 2020 Visa Bulletin can be found here.


2. DHS and DOL Amend Rules on Prevailing Wage and H-1B Requirements


On October 8, 2020, DHS and DOL issued companion rules targeting employment-based immigration, and particularly the H-1B program. The rules were issued as interim final regulations (IFRs), bypassing public notice and comment. The DHS IFR is slated to take effect on December 7, 2020, whereas the DOL IFR was effective immediately on October 8, 2020.


DHS Interim Final Rule


The DHS IFR tightens H-1B eligibility standards and place new constraints on offsite placement of H-1B Workers.


This rule will narrow the definition of “specialty occupation” as Congress intended by closing the over-broad definition; require companies to make “real” offers to “real employees” by closing loopholes and preventing the displacement of American workers; and enhance DHS’s ability to enforce compliance through worksite inspections and monitor compliance before, during, and after an H-1B petition is approved.


Some of the Key Changes:

  • General Degrees: General degrees in Engineering, Liberal Arts, Business, etc. are not sufficient to meet the definition and requirements of specialty occupation

  • Multiple Disparate Fields of Study: Will need to explain each field is in a specific specialty that provides “a body of highly specialized knowledge” directly related to the duties and responsibilities of the position

  • Demonstrate that the Degree is Always Required: Requires a demonstration that the degree is "always" a requirement for the occupation, rather than "normally”, “usually” or “commonly" a requirement

  • H-1B Validity for Third-Party Worksites: Maximum of 1-year validity period for H-1B workers who will be working at a third-party worksite, as opposed to the standard 3-year validity period

DHS’ interim final rule can be found here.


DOL Interim Final Rule


The DOL IFR amends the regulations governing PERMs and LCAs to incorporate changes to the computation of prevailing wage levels. It will increase prevailing wages for H-1B, E-3 and H-1B1 nonimmigrant cases, and the PERM labor certification program


Under the DOL IFR, OES prevailing wage minimums will increase significantly:

To illustrate the impact of this change, under the prior rule, the Level I prevailing wage for a Software Developer in New York City was $78,811 (17th percentile). Under the new rule, that Level I wage is now $116,251 (45th percentile).


LCAs filed on or after October 8 will be subject to the new and higher wage minimums. LCAs filed and pending before October 8 will benefit from the previous prevailing wage structure.


PERM prevailing wage determinations that are pending as of October 8 will be subject to the new prevailing wage structure.


DOL’s interim final rule can be found here.


3. DHS Proposed Notice of Rulemaking to Change the H-1B Cap-Subject Registration Process


On October 28, 2020, DHS announced that it will be publishing in the Federal Register today (November 2, 2020) a notice of proposed rulemaking to amend regulations governing the process of how USCIS selects H-1B registrations for cap-subject petitions.


If finalized as proposed, should USCIS receive H-1B cap-subject petitions that exceed the quota, USCIS would prioritize the selection of H-1B registrations based on corresponding wage levels. This means that DHS is proposing to replace the random selection process with a wage-level-based selection process for H-1B cap-subject petitions.


DHS’ alert can be found here.


4. USCIS Increased Premium Processing Fee Effective October 19, 2020 


On October 16, 2020, USCIS announced its fee increase for premium processing is effective October 19, 2020. The premium processing fee for Form I-129s requesting H-2B or R-1 nonimmigrant status increased from $1,440 to $1,500; the premium processing fee for all other filings increased to $2,550.


All premium processing requests must include the new fee amount.


USCIS’ alert can be found here.


5. USCIS Rejects all Forms I-485 that Do Not Include the Required Form I-944 and Evidence at Time of Filing


Per USCIS resuming applying the public charge final rule nationwide, starting from October 14, 2020, USCIS will reject all Forms I-485 that do not include the required Form I-944 Declaration of Self-Sufficiency and evidence at the time of filing.


The I-944 is designed to collect extensive information and evidence involved in evaluating public charge inadmissibility: age, health, household size, financial resources, education, and skills. 


USCIS’ alert can be found here.


6. DOS Update on Court Injunction Regarding Nonimmigrant Visa Applicants’ Entry Ban


On October 9, 2020, DOS announced that as a result of the federal district court injunction, any J-1, H-1B, H-2B or L-1 applicant who is sponsored by, petitioned by, or whose petitioner is a member of, the National Association of Manufacturers, the U.S. Chamber of Commerce, the National Retail Federation, TechNet, or Intrax, Inc., is no longer subject to the Presidential Proclamation entry restrictions.


This means that foreign nationals sponsored by the abovementioned member organizations, as well as their spouses and dependents, should be able to apply for H, L or J visas at U.S. consulates and enter the United States while the entry ban is in place.


DOS’ alert can be found here.

OTHER ANNOUNCEMENTS & UPDATES

ALG x Study and Job Cooperative for Taiwanese in U.S.’s Free Webinar “Navigating the New H-1B and PERM Landscape” A Success


On October 27, 2020, ALG successfully hosted a free 1-hour online webinar alongside Facebook Group "Study and Job Cooperative for Taiwanese in U.S." for their group members on the topic “Navigating the New H-1B and PERM Landscape”. ALG’s experienced immigration attorney Tzu-Hui (Olivia) Chien, Esq. discussed changes in the new prevailing wage levels and H-1B Criteria, as well as requirements and procedure of EB-2/EB-3 PERM.


During the webinar, many attendees actively asked questions and interacted with our attorney. 


ALG is closely monitoring changes in U.S. immigration and will provide further updates and webinars on this and other topics as developments occur.


Further Extension of Restrictions on US-Canada and US-Mexico Borders Until November 21, 2020


In order to limit the further spread of the coronavirus, on March 21, 2020, the U.S. reached agreements with both Canada and Mexico to limit all non-essential travel across borders. These joint initiatives were originally set to be in place for 30 days, subject to reevaluation and further extension in light of coronavirus pandemic developments. “Non-essential” travel includes travel that is considered tourism or recreational in nature.


On October 19, 2020, these measures were further extended until November 21, 2020, which marks the seventh extension since implementation. These restrictions do not apply to entry through U.S. airports.


DHS’ alert can be found here.

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