October 12, 2020
Transcending BordersSM
BREAKING: Dramatic Changes to H-1B (and PERM)
On Tuesday, October 6th, the Trump administration announced yet another measure making it more difficult for skilled foreign workers to obtain H-1B visas. Ken Cuccinelli, Acting Deputy Secretary, estimates that about one-third of applicants would be denied under the new rules. The new rules from the Department of Labor (DOL) and the Department of Homeland Security (DHS):

  • Substantially raise the required pay for foreign workers hired on H-1Bs and sponsored for PERM (by nearly 50% in some cases);
  • Redefine “specialty occupation” to limit the kinds of jobs for which H-1B holders can be hired; and
  • Increase scrutiny on companies that place H-1B workers at third-party sites including, limiting the validity of an H-1B approval to one year for a worker placed at a third-party worksite and expanding enforcement options for companies that do not abide by H-1B rules or cooperate with site visits.

The DOL rule requiring employers to increase what they pay H-1B recipients took effect two days after publication of the rule, on Thursday Oct. 8, while the rules that fall under the DHS will be adopted in 60 days after a public comment period.

The Trump administration is justifying this move by arguing that it prioritizes U.S. workers amid the economic downturn brought about by the pandemic. Opponents claim that the proximity to the election is evidence that these new rules are a political ploy to help drum up support from Trump’s base.

In this video, Becki Young addresses the DOL rule regarding prevailing wages for H-1Bs and PERM Labor Certifications. This rule changes the way the Department of Labor (DOL) calculates prevailing wages, resulting in substantial increases to the wages employers are required to pay sponsored foreign workers.
October Visa Bulletin Advances Priority Dates for EB Categories
The State Department’s Visa Bulletin indicates when statutorily limited visas are available for issuance to prospective immigrants based on their individual priority date. The October 2020 Visa Bulletin took effect on October 1, 2020. This month’s Bulletin shows rapid advancement in priority dates in the employment-based (EB) preference categories, with the exception of EB-5.
 
U.S. Citizenship and Immigration Services (USCIS) indicated that for the month of October it will follow the dates for filing in the employment-based categories. This means many employment-sponsored foreign nationals, many of whom have been waiting years, are now eligible to file their
I-485 adjustment of status applications this month.

The rapid advancement in the employment-based priority dates reflects the impact of travel bans and consular closures in fiscal year (FY) 2020. Moreover, a Presidential Proclamation issued in June 2020, banning admission of certain immigrants, meant that many family-based immigrants were unable to obtain their immigrant visas in FY 2020. The unused family-based numbers from FY 2020 have been added to the FY 2021 employment-based visa allocation.

Downgrades: In some cases, beneficiaries with approved EB-2 petitions are not current but would be if they had filed in the EB-3 category. In this situation, beneficiaries are able to file for a downgrade from EB-2 to EB-3, making them eligible to file their AOS immediately.

Please contact our office if you have questions about how the October Visa Bulletin may impact your situation.

Premium Processing Expansion
Congress has authorized an expansion of the categories eligible for premium processing, as well as an increase in the premium processing fees. Please note this is NOT YET IMPLEMENTED and being shared for informational purposes only.

This stopgap legislation requires USCIS to permanently expand premium processing to include many employment-based immigration applications and petitions, including applications for employment authorization and applications to change or extend status for the dependents of H-1B, L-1 and other principal nonimmigrant categories. The measure includes a permanent expansion of USCIS’ premium processing program, while increasing the base fee to $2,500 from $1,440. The law also gives DHS the authority to designate other case types for premium service.

Once the changes are implemented:

  • Premium processing shall be available in the following categories –
  • Employment-based nonimmigrant petitions and associated applications for dependents. This will broaden premium processing to a number of new categories and also speed up I-539 processing for family members.
  • EB-1, EB-2 and EB-3 categories. Note that this will extend premium processing to EB-1C multinational executives and managers as well as EB-2 national interest waivers.
  • Applications to change or extend nonimmigrant status.
  • Applications for employment authorization.
  •  Any other immigration benefit USCIS deems appropriate.

  • For new premium processing categories, the following shall apply:
  • For EB-1C (multinational executives and managers) and EB-2 National Interest Waivers (regular and physician) the fee shall be no more than $2500 and the processing time no more than 45 days.
  • For changes of status to F, J and M, the fee is set at an amount no greater than $1750 and shall have a processing time limit of 30 days.
  • For changes to E, H, L, O, P, R, or extensions in these categories, the fee is set to an amount not greater than $1750 and the required processing timeframe is not greater than 30 days.
  • For EADs, the fee is $1500 and the required processing time is no more than 30 days.

Electronic Issuance of PERM Approvals 
The Foreign Labor Certification Data Center (OFLC) announced it is permanently adopting electronic issuance of PERM labor certifications to employers. In circumstances where employers submit PERM applications by mail and are unable to receive the certified ETA Form 9089 documents by email, OFLC will continue to send the documents by mail.
DOS Instructions for 2022 Diversity Visa Program
DOS recently released instructions for the 2022 Diversity Immigrant Visa Program application process. For FY2022, up to 55,000 Diversity Visas (DVs) will be available and there is no cost to register for the program. Registration begins at 12:00 pm (ET) on October 7, 2020, and will continue until 12:00 pm (ET) on November 10, 2020.

DOS makes selections by randomized computer drawing from applicants who meet eligibility requirements. For 2022 DVs, persons from the following high-immigration countries/regions may NOT apply: Bangladesh, Brazil, Canada, China (including Hong Kong SAR), Colombia, Dominican Republic, El Salvador, Guatemala, Haiti, Honduras, India, Jamaica, Mexico, Nigeria, Pakistan, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, Vietnam, Macau SAR, Taiwan.
Injunction on NIV Suspension 
On October 1, 2020, the Trump Administration was enjoined by a U.S. Federal Court from enforcing the June 22nd Presidential Proclamation prohibiting the issuance and processing of J visas (as well as H temporary work and L intercompany transfer visas).

This injunction is limited to named plaintiffs, which include the United States Chamber of Commerce and its member organizations. In practical terms, this means that U.S. Consulates which are currently open will again be routinely processing J visas for Au Pair, Work and Travel, Trainee and Internship programs, as well as H and L visas for eligible applicants.  
Global Immigration
In the past few weeks our phones have been blowing up with inquiries from individuals who are interested in obtaining citizenship (often through ancestry) in another country.

GYH is available for consults with individuals who desire to obtain a second passport. Certain countries (such as Italy, Ireland, Poland, Israel, etc.) offer citizenship based on descent, meaning individuals who can prove ancestry from certain countries may be eligible for a second citizenship. Some countries, such as Britain, limit citizenship by descent to one generation, i.e. parents must be citizens. Other countries, such as Ireland, will grant citizenship to people with family trees as far back as three, sometimes four, generations.

In her 2018 article in The Huffington Post, Becki Young shares a snapshot of nationality laws from experts around the world. If you are ready to establish your Plan B, please contact info@grossmanyoung.com or call 301-917-6900 to schedule a consultation.