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 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.
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The government’s failure to follow the proper rulemaking procedures makes the new rules invalid and requires them to be rescinded by the government. Continue reading “H-1B Wage Rules Rescinded – Another Win for Employment-Based Immigration”
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.
In response to the coronavirus pandemic and to protect jobs for U.S. workers, President Trump announced at a Tuesday press conference (April 21, 2020) that he would sign an Executive Order temporarily suspending certain individuals seeking permanent resident (green card) status into the United States. The President is expected to sign the suspension order this week and its scope will be limited only to green card applicants.
Contrary to earlier reports, the immigration suspension order will not apply to individuals entering the U.S. on a temporary work or other visa. The immigration suspension will not apply to essential immigrant workers, such as those working in the healthcare sector who are seeking permanent resident status and to their family members. Beyond that, the scope of the suspension and which specific agencies and programs will be affected are not known. The immigration suspension order will be in effect for 60 days but may be extended.
As noted, as of the time of this writing, there are solely reports about the draft Executive Order, but the actual suspension order has not yet been issued. We are closely monitoring the situation and will provide more information as soon as it is available.
The U.S. Department of State (DOS) adjusted the reciprocity schedule for Australia for certain nonimmigrant visa categories , effective December 23, 2019. This change is a result of Executive Order 13780 (“Protecting the Nation from Foreign Terrorist Entry into the United States”), signed by President Trump in March 2017, that required the DOS to undertake a worldwide review of nonimmigrant visa reciprocity agreements to ensure that US nationals receive “reciprocal treatment in terms of validities and fees as that afforded to host country nationals, as required by US law.”
Below are some of the most notable increases in reciprocity fees for Australian nationals:
For E-1/E-2 nonimmigrant visa applicants, the reciprocity fee was changed from $105 USD to $3,574 USD . For H-1B nonimmigrant applicants, the reciprocity fee was changed from $105 USD to $1,295 USD. For L-1 applicants (including blanket and individual petitions), the DOS increased the fee from $105 USD to $1,790 USD. The fee for L-2 dependent applicants also increased to $1,790 USD. There are no increases for E-3 visas for Australian nationals working in specialty occupations.
These are dramatic increases in reciprocity fees for Australians and the DOS has noted that they are still reviewing visa schedules for other countries so we can expect more changes in the reciprocity schedules for other countries, as well.
Change in CIS Policy on worksite/location changes: On April 9, 2015, the USCIS’ Administrative Appeals Office (AAO) issued a precedent decision, Matter of Simeio Solutions, LLC, ruling that when an H-1B employee changes work site locations, it is considered a material change that may require the filing of an amended or new H-1B petition with USCIS.
Previous USCIS Guidance: Under the previous USCIS guidance, if a new Labor Condition Application (LCA) was filed with the U.S. Department of Labor (DOL) prior to the work site location change, no amended or new H-1B petition was required to be filed with USCIS.
New USCIS Guidance: Under the new USCIS Guidance, if an H-1B employee is changing work site locations and the new work site location is not within the same Metropolitan Statistical Area (MSA) as the current worksite location, then an amended or new H-1B petition must be filed with USCIS.
If the worksite change is within the same MSA, no amended or new H-1B petition is required; however, copies of the original certified LCA listing the current work site location will need to be posted at the new work site location prior to the H-1B employee beginning employment at the new location. After the requisite posting period, the posted original certified LCA copies must be placed in the Public Access File notated with the dates and places of posting.
Compliance: If an employer complied with the pre-Simeio decision USCIS Guidance, by completing a new LCA before the worksite change, and the H-1B employee work site changed occurred on or before April 9, 2015, USCIS will not pursue any new adverse actions against the employer after July 21, 2015 that are based solely upon a failure to file an amended or new H-1B petition to address the work site location change. USCIS will however, preserve the right to pursue any adverse actions (related to work site location changes) which have commenced or been completed prior to July 21, 2015, and will also still continue to pursue adverse actions for other violations.
However, USCIS provides a safe harbor, if an employer files amended or new H-1B petitions on or before January 15, 2016 to address prior work site changes for H-1B employees (including cases that followed the pre-Simeio decision USCIS Guidance for work site location changes prior to April 9, 2015, with the filing of new LCAs listing the new work site location). USCIS will consider those filings timely, and not subject to adverse action by USCIS for failure to file an amended or new H-1B petition to address the work site location change.