Trump Extends the Visa Bans!
After successfully beating back the Department of Labor initial illegal regulation on how prevailing wages are calculated for labor certification and H-1B process, the DOL has just published its updated wage regulation. It is just like a repackaged Christmas gift you really did not want. Essentially nothing has changed, its still as awful as it was, AND, we will litigate to stop it. The good news is that it will NOT go into effect for at least 60 days after the Biden Administration is sworn in, giving us time to defeat it in the courts again.
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Here is the Immigration News You NEED to Know Now
UP-TO-DATE IMMIGRATION NEWS
Department of Labor to Publish Final H-1B and PERM Wage Rule – On January 12, 2021, the Department of Labor (DOL) provided an advanced copy of final rulemaking changes to the prevailing wage system for the employment-based green card process and the H-1B nonimmigrant visa. DOL expects to publish the final rule this week to replace a prior interim rule on wages that was struck down by a court in December.
USCIS Issues Final Rule Prioritizing Higher Wages in H-1B Cap Selection Process – USCIS published a final rule prioritizing the selection of new H-1B petitions in 2021 based on proffered wages.
USCIS Announces Delays in Issuing Receipt Notices Filed at Lockbox Facilities– USCIS announced delays of four to six weeks in sending out receipt notices after receiving properly filed applications and p
Judges Block Trump Asylum Rule, Refugee Local Placement Order– A U.S. district judge blocked the Trump administration’s rule that would have severely limited asylum in the United States by curtailing eligibility criteria. In another ruling on the same day, a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit ruled against a Trump executive order requiring consent from state and local entities for refugee placements.
SAVE Issues Notice on Verifying Applicants’ Extended Deferred Action Under DACA – The Systematic Alien Verification for Entitlements program announced that it can verify when an applicant for a federal, state, or local government benefit or license has received deferred action under Deferred Action for Childhood Arrivals.
Department of Labor to Publish Final H-1B and PERM Wage Rule
On January 12, 2021, the Department of Labor (DOL) announced final rulemaking (again) to the prevailing wage system for the employment-based green card process and the H-1B nonimmigrant visa. This rule will be publisehd this week in response to its complete loss on a similar rule in November.
How Will this Rule Effect Employers and Immigrants?
Congress has said that employers sponsoring immigrants for H-1B visas or labor certifcation based green cards must pay the “prevailing wage.” What is the prevailing wage? That is supposed to be the average rate of wages paid to similarly qualified US workers in the location where the H-1B- or green card-sponsored employee will work. The Department of Labor publishes, through the Bureau of Labor Statistics. the Occupational Employment Statistics (OES) wage survey which,in turn tells employer the prevailing wage that must be offered to an H-1B worker or in a green card petition, depending on the level of required experience. Their methodology provided a typical entry-level wage around the 17th percentile of all wages in an occupation; the most experienced level in the wage survey was around the 67th percentile.
The new final rule says that the minimum salary that must be offered to an entry-level worker is now the 35th percentile of all wages and the highest level for experienced workers in the 90th percentile. The final rule also provides a gradual transition period and does not begin to go into effect until July 1, 2021, thereafter it provides a three-year transition period before fully taking effect.
Waht the DOL has NOT done is explain HOW it calculates these wages. Yeah, kind of a problem, right? Don’t worry though, we will be adding this rule to our existing challenge of the old rule, so we can quickly deal with the fact that the Department of Labor literally ignored ALL of the comments to this proposed rulemaking!
USCIS Issues Final Rule Prioritizing Higher Wages in H-1B Cap Selection Process
On January 7, 2021, U.S. Citizenship and Immigration Services (USCIS) published a final rule prioritizing the selection of new H-1B petitions in 2021 based on higher proffered wages.
The new rule gives priority to petitions that offer “Level IV” wages (wages around the 75th-80th percentile of local wages for the occupation) based on the Department of Labor’s Occupational Employment Statistics (OES) survey, and then gives priority in descending order to petitions offering Level III, Level II, and Level I wages. The selection of new H-1B petitions when demand exceeds the available 85,000 numbers has been by random selection, or “lottery,” for over a decade. The final rule states that random selection will happen only for petitions in the lowest wage band for which numbers are still available.
The rule is scheduled to go into effect March 9, 2021, before the FY 2022 H-1B visa lottery. However, there are several potential impediments. President-elect Biden’s inauguration will occur well before the rule’s effective date.
Biden may scrap this rule, or, more likely, the rule willbe challenged in court based on the argument that Congress mandated that H-1B visas be made available in the order in which petitions are filed, not based on wages offered.
· USCIS final rule, https://bit.ly/38s6r9s
· USCIS news release, https://www.uscis.gov/news/
· “With Democratic Senate Majority, Biden Has Power To Quickly Undo Trump Regulatory Rollbacks,” Forbes, https://bit.ly/3i0pQBF
· “DHS Publishes Final Rule To End H-1B Visa Lottery,” https://www.forbes.com/sites/
USCIS Announces Delays in Issuing Receipt Notices Filed at Lockbox Facilities
U.S. Citizenship and Immigration Services (USCIS) announced delays of four to six weeks in sending out receipt notices after receiving properly filed applications and petitions with a USCIS lockbox. The agency said a variety of factors were to blame, including “COVID-19 restrictions, an increase in filings, current postal service volume and other external factors.” Among other things, USCIS said there may be “significant delays” in receipt notices for Form I-765, Application for Employment Authorization, based on categories related to F-1 students.
USCIS said its lockbox workforce was working extra hours and redistributing its workload to minimize delays. “We do not anticipate any receipting delays that would result in a payment that is past its validity date,” the agency said. For those who have not yet filed an application, USCIS recommends filing online if possible, creating a USCIS online account to check case status, and completing a Form G-1145, E-Notification of Application/Petition Acceptance to request a text message and/or email when USCIS accepts the form via a lockbox.
· USCIS alert, https://www.uscis.gov/news/
Judges Block Trump Asylum Rule, Refugee Local Placement Order
On January 8, 2021, a U.S. judge in the Northern District of California blocked the Trump administration’s rule that would have severely limited asylum in the United States by curtailing eligibility criteria. Judge James Donato blocked the rule on the basis that Chad Wolf, whom President Trump appointed as Acting Secretary of Homeland Security, did not have the authority to impose rules because he was not lawfully appointed. Noting that limiting the decision “would result in a fragmented and disjointed patchwork of immigration policy,” Judge Donato said the temporary restraining order applies nationwide.
Judge Donato said the government “has recycled exactly the same legal and factual claims made in the prior cases, as if they had not been soundly rejected in well-reasoned opinions by several courts. This is a troubling litigation strategy. In effect, the government keeps crashing the same car into a gate, hoping that someday it might break through.”
Asylum at the U.S.-Mexico border is otherwise also limited due to COVID-19 pandemic-related and other reasons. President Trump reportedly withdrew his nomination of Mr. Wolf to serve as Secretary of Homeland Security after Mr. Wolf condemned those who rioted and invaded the U.S. Capitol and said he supported an orderly transition to the Biden administration.
In another ruling on the same day, a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit ruled against a Trump executive order requiring consent from state and local entities for refugee placements.
· “Judge Blocks Dramatic Overhaul of U.S. Asylum System From Taking Effect,” Reuters, https://reut.rs/3s40ZBs
· U.S. Judge Blocks Trump Administration’s Sweeping Asylum Rules,” Associated Press, https://apnews.com/article/
USCIS and SAVE Issue Notice on Verifying Applicants’ Extended Deferred Action Under DACA
The Systematic Alien Verification for Entitlements (SAVE) program announced that it can verify when an applicant for a federal, state, or local government benefit or license has received deferred action under Deferred Action for Childhood Arrivals (DACA).
SAVE noted that applicants may present an unexpired Form I-766, Employment Authorization Document (EAD), in combination with an I-797, Extension Notice, issued by USCIS showing that their deferred action has been extended for one year. This unexpired EAD must contain a Category code of C33 and be issued on or after July 28, 2020, SAVE said, adding that SAVE user agencies may need to institute additional verification in these situations.
· USCIS notice, https://www.uscis.gov/save/
Immigration Agency Information
Department of Homeland Security:DHS.gov/coronavirus
- USCIS: USCIS.gov/coronavirus
– Overview and FAQs: https://www.ice.gov/
– Requirements for ICE Detention Facilities: https://www.ice.gov/doclib/
– Updates and Announcements:https://www.cbp.gov/newsroom/
– Accessing I-94 Information: https://i94.cbp.dhs.gov/I94/#/
Department of Labor:
- Office of Foreign Labor Certification:
– OFLC Announcements (COVID-19 announcements included here): https://www.foreignlaborcert.
– COVID-19 FAQs:
§ Round 1 (Mar. 20, 2020): https://www.foreignlaborcert.
§ Round 2 (Apr. 1, 2020): https://www.foreignlaborcert.
§ Round 3 (Apr. 9, 2020): https://www.foreignlaborcert.
- Travel advisories: https://travel.state.gov/
content/travel/en/ traveladvisories/ea/covid-19- information.html
- Country-specific information: https://travel.state.gov/
content/travel/en/ traveladvisories/COVID-19- Country-Specific-Information. html
- J-1 exchange visitor information: https://j1visa.state.gov/
- Executive Office for Immigration Review: https://www.justice.gov/eoir/
Agency Twitter Accounts
· EOIR: @DOJ_EOIR
· ICE: @ICEgov
· Study in the States: @StudyinStates
· USCIS: @USCIS
Immigrant and employee rights webinars. The Department of Justice’s Immigrant and Employee Rights Section (IER), of the Civil Rights Division, is offering a number of free webinars for workers, employers, and advocates. For more information, see https://www.justice.gov/crt/
E-Verify webinar schedule. E-Verify has released its calendar of webinars at https://www.e-verify.gov/
For Details on these and other topics, click www.immigration.net!
Government Agency Links
Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, and the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:
USCIS Service Center processing times online: https://egov.uscis.gov/cris/
Department of State Visa Bulletin:
Visa application wait times for any post:https://travel.state.gov/
Kuck Baxter Immigration — In The News
Charles Kuck was quoted in The Times of India concerning the publication of the new Department of Labor wage regulation: “We will be amending our lawsuit to seek to enjoin this lame attempt to fix its prior illegal regulation. We remain confident that his regulation will never see the light of day as written.”
Mr. Kuck was quoted by Law360 in “Biden’s Win Means Big Business for BigLaw.” Mr. Kuck said, “In the immigration area of law, the Trump administration has made, on average, one regulatory or policy change each day since January 20, 2017. [Biden] will spend the next four years reversing virtually all of these administrative changes, and hopefully seeking a complete restructure of our immigration laws.” He added, “Virtually all immigration lawyers are busier than they have ever been. But we have been busy holding back the floodwaters in the dike, like the little Dutch boy. A President Biden will bring sanity back to our system, and a restorative effort to allow us to affirmatively assist our clients.”
Mr. Kuck was also quoted by Bloomberg Law in “New Guidance Details Visa Ban’s National Interest Exceptions .” Mr. Kuck said that this proclamation is “basically a complete walk back of the prior exemptions and prohibitions” found in the original order. For example, the State Department’s definition of jobs that pertain to critical infrastructure industries in the new guidance is a major expansion of how it may have traditionally been defined, he said. Mr. Kuck has filed a friend of the court brief in the Gomez case challenging the ban. “The average person thinks a nuclear plant, but now it encompasses IT firms, communications, food and agriculture. I can’t think of a sector that’s not included” under the H-1B applicants’ exemptions, he said. Mr. Kuck predicted that many visa hopefuls stuck outside the United States will likely be able to prove they qualify for a national interest waiver to the ban. “It seems like most people stuck right now, who have been denied an exemption in the past, will easily qualify. It’s a complete walk back because they know they’re going to lose this litigation.”
The article is at https://news.bloomberglaw.com/
Kuck Baxter Immigration LLC published its US legal guide for Corporate Immigration. It can be found at https://iclg.com/practice-
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