Hiring season is fraught with questions and uncertainties; preparing employment applications; interviewing, drafting offer letters….. What questions can be asked? What questions should be asked? These concerns are even more pronounced when it comes to immigration status, and immigration sponsorship. Those tasked with the hiring process often ask, whether it is legal to ask applicants about their immigration status, how to ask that question, and even more important, “Do we have to sponsor for immigration status if the applicant needs it?”
The Centers for Disease Control and Prevention (CDC) has issued a new rule requiring that all air passengers arriving to the United States from a foreign country provide documentation of a negative COVID-19 test or documentation that the passenger has recovered from COVID-19. Passengers may satisfy this rule by either getting tested no more than three days before their flight departs and providing proof of the negative result to the airline before boarding, or providing documentation of having recovered from COVID-19 and that a licensed healthcare provider has cleared the passenger for travel. Learn more about this new requirement in our recent client alert.
The Department of Homeland Security (DHS) has issued a new rule that transforms the random cap H-1B selection process to one that prioritizes registrations and petitions based on the highest Department of Labor (DOL) prevailing wage level met by the offered salary. It is not clear yet whether the incoming Biden administration will implement this rule at all or with modifications. Learn more in our recent client alert.
As many of you know, the most common H-1B professional worker visa category is subject to an annual quota/ cap per fiscal year (with some exceptions) and historically, the demand for initial H-1B numbers significantly exceeds the numbers available. So last year, employers and foreign nationals welcomed a new H-1B registration rule, whereby employers seeking to file H-1B cap-subject petitions had to first register electronically with the U.S. Citizenship and Immigration Service (USCIS) during a designated registration period. And at the end of the initial registration period, USCIS received more registrations than needed to reach the H-1B cap, so it randomly selected, through a computer generated lottery a sufficient number of registrations who were then notified to submit their H-1B cap petition filings to USCIS. Continue reading “Planning to register for the H-1B cap season this spring but will you have a chance of being selected based on this new DHS Rule?”
There are several noteworthy developments in the PERM labor certification world requiring employers and practitioners to rethink how to time PERM applications and to (once again) adapt their processes front-to-end. The COVID-19 pandemic combined with high unemployment rates, as well as U.S. Department of Labor (DOL) efforts to change the prevailing wage system, and an apparent increase in scrutiny of PERM applications, have all contributed to a change in the PERM landscape. Below are the top 5 developments employers and practitioners have been facing with respect to PERM preparation and filing: Continue reading “2021 PERM Labor Certification Updates: Processing Times Increase, COVID Accommodations Continue & Prevailing Wages are back to Normal”
A challenge brought by the U.S. Chamber of Commerce to the new H-1B wage levels and the new definition of “Specialty Occupation” was upheld by the United States District Court for the Northern District of California on December 1, 2020. The plaintiff’s Summary Judgement motion was granted when the Court held that the government failed to demonstrate good cause for not following the normal notice and comment procedures required for immigration regulations. The government’s failure to follow the proper rulemaking procedures makes the new rules invalid and requires them to be rescinded by the government. Continue reading “H-1B Wage Rules Rescinded – Another Win for Employment-Based Immigration”
The U.S. State Department will begin accepting online registrations for the 2022 Diversity Visa (DV) lottery aka green card lottery starting October 7, 2020 at noon EDT. Those who wish to enter the lottery have until Tuesday, November 10, 2020 at noon EST to file online.
For FY 2022, the DV lottery program will make up to 55,000 green card numbers available through random selection and the results will be announced in May 2021. Those selected in the lottery can submit their green card applications starting on October 1, 2021.
To register for the DV Lottery, you must meet the following eligibility criteria:
- Be born or have a spouse (and in some circumstances, a parent) born in a country with low rates of US immigration. The following countries are excluded from the FY2022 lottery, so if you are born in one of these countries, you are not eligible to participate in the lottery:
- 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, and Vietnam.
- Must have a high school education (or equivalent) or at least two years of qualifying work experience.
- Must submit an online form and a digital photo through the official DV lottery website. DV lottery applicants may include a spouse (same-sex or opposite-sex) and children in their entry. Only one entry is permitted per person.
It is critical to carefully follow the State Department’s official lottery instructions , or you may be disqualified. Also, very important to only use the official DV lottery website is located on the State Department website and to remember that the State Department does not charge a fee for lottery registrations. To learn more about DV lottery fraud, visit the websites of the State Department and the Federal Trade Commission.
If lottery assistance is needed, seek competent advice or reach out to us. Good luck to all the DV lottery entrants!
On September 25, Immigration and Customs Enforcement (ICE), the DHS agency with jurisdiction over F-1 foreign student visa holders, published new proposed regulations that would end the long time U.S. practice of issuing “Duration of Status” to F-1 students. Instead, F-1 visa holders would be limited to 2 or 4 year visa terms depending upon their country of origin, and be required to reapply for F-1 Status through USCIS to obtain extensions, or to leave the United States and apply for an extension . The proposed regulations were immediately criticized by the higher education community. The rules were called ill-conceived, misguided, unnecessary, and a burden to an industry that has already seen a steady decline in international student admissions. Read the full blog post here.
The I-9 process continues to be the bane of HR existence. Recent accommodations for remote work environments, closed driver’s license agencies, and USCIS delays in printing work permits and green cards are definitely appreciated and helpful, but they also make the process more confusing. Employers are beginning to worry about how they will catch up on viewing all of the original documents they saw remotely during the pandemic, in the USCIS-designated 3-day time frame once their companies return to the office. Meanwhile, I-9 audits and worksite enforcement actions are continuing apace. While following all of the new guidance, employers must also be sure to stick to the basics. Continue reading “USCIS gets flexible on I-9 Process, but Employers must stay Vigilant”
Employers who may be trying to proceed with PERM applications for foreign national workers are in an uphill battle. With layoffs, furloughs and unemployment at all time highs, the Department of Labor is on high alert for unsuspecting PERM employers who are trying to do the right thing under difficult circumstances.
Employers who have H-1B or other workers with limited time on their nonimmigrant status, don’t have the luxury of waiting until the job market improves to begin PERM applications for their employees. For H-1B or L-1B workers in their final year or two of nonimmigrant visa eligibility, PERM is a necessity or they will have to return to their home countries. Continue reading “PERM Gets Rough in an Uncertain Job Market”