October 2020 was a very active month for immigration. GLF provided updates on Google, LinkedIn, and Twitter on numerous US Immigration matters including:
1) Donald Trump’s H-1B ban;
2) Increase in Premium Processing fees for certain cases;
3) End of the B-1 in lieu of H-1B Visa program; and
4) Changes to H-1B Cap case selection priorities.
We at GLF post regular updates on our Google, LinkedIn, and Twitter handles. Additionally, we also periodically send out GLF Newsletters when the subject matter is extensive and relevant for a detailed analysis. Presented below is a consolidated summary of updates posted on GLF’s Google, LinkedIn, and Twitter handles for October 2020. Below is the link to our Google posts.
US DISTRICT COURT HALTS DONALD TRUMP’S ENTRY-BAN FOR H-1Bs
In National Association of Manufacturers et al., v. DHS, a Federal Judge from the Northern District of California has issued an Interim Injunction against the June 2020 Proclamation that suspended entry of foreign nationals on H-1B, L-1, H-2B, and most J-1 temporary visas until December 31, 2020, with discretion to continue the proclamation as necessary.
A coalition of groups representing thousands of American businesses, including the U.S. Chamber of Commerce, National Association of Manufacturers, National Retail Federation, Technet, and Intrax questioned the authority granted to the President. The Court held that the President had exceeded his powers in halting employment of Non-Immigrant Workers. Further, the Interim Injunction remains in effect during the course of the pending trial or until further decision from this Court.
DOS announced that the Federal Court’s Order shall not be taken into account in making emergency appointments. However, DOS is in the process of updating guidance on individual Embassy and Consulate websites.
DOS ISSUES GUIDANCE ON FEDERAL COURT’S INJUNCTION LIFTING H-1B VISA BAN
As per the Federal District Court’s Injunction in National Association of Manufacturers et al., v. DHS, DOS issued a directive that H-1B, L-1, H-2B, and most J-1 temporary visas will no longer be subject to an entry ban. US consulates across the globe have started issuing visas in a phased manner. However, there might be difficulty in scheduling appointments due to the ongoing pandemic. The Presidential Proclamation entry restrictions will not be a factor while reviewing the emergency appointment requests.
To be eligible for visa issuance, H-1B Petitioner must establish that he/she is covered under NAM’s court order. H-1B visa applicants are advised to present a letter supporting that the H-1B Petitioner is in good standing in one of the Plaintiff’s associations in the case. Consular officers maintain discretion in issuing visas after thorough verification of evidence.
PREMIUM PROCESSING FEE FOR H-1B, L-1, AND I-140 HAS BEEN INCREASED
USCIS has increased Premium Processing fees for H-1B, L-1, and I-140 with effect from October 19, 2020. The Premium Processing fee has been increased from $1,440 to $2,500 for all filing except those from petitioners filing Form I-129, Petition for a Nonimmigrant Worker, requesting H-2B or R-1 nonimmigrant status. The fees for H-2B or R-1 nonimmigrant visas have been increased from $1,440 to $1,500.
US CONSULATES TO END B-1 IN LIEU OF H-1B VISA
The Department of State has proposed a rule to end the issuance of B-1 in lieu of H-1B Visa. This was a special visa that allowed B-1 visitors to work in the US. Visa holders performed specialty occupation job roles of not over 6 months when H-1B visas were not available. B-1 in lieu of H-1B Visa required that:
1) Visitors are NOT paid in the US;
2) Remain employed with the foreign employer; and
3) Only receive reimbursements in the US to cover incidentals such as housing, meals, and transportation.
In seeking to end this visa, State Department argues:
1) By utilizing B-1 in lieu of H-1B visas for a temporary span, US employers were able to rotate employees between US and Foreign country without paying prevailing wages for the position, that are typically payable by the employer on H-1B Visas.
2) The cost for B-1 Visas is significantly less than that of H-1B Visa which affects funds received to support the US Workforce through the ACWIA fee.
H-1B CAP CASE SELECTIONS TO BE PRIORITIZED FOR HIGHER WAGE POSITIONS
Department of Homeland Security (DHS) has proposed a new rule wherein the selection process of H-1B Registrations will be prioritized based on higher wage levels. The proposal modifies the current H-1B cap selection process with a wage-level-based selection process, which will necessitate that employers offer higher wages for positions that entail higher skills and highly skilled employees, rather than using it as a means to fill lower-paid positions.
DHS is prioritizing higher wage levels with an aim to offer better protection to native US workers from unfair competition. If the new rule gets implemented, it will affect employers filing H-1B Fiscal Year Petitions, wherein they will be required to hire high-skilled resources and offer higher wages. The proposed rule will be implemented for both H-1B regular cap and the H-1B advanced degree exemption. DHS will open a public comment period after the publication of the said rule in the Federal Register. Interested parties will have 30 days to submit comments related to the new rule
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At GLF will continue to follow further developments in this and other matters and we will provide updates through our Newsletter as and when they become available. GLF receives numerous emails and phone calls every day asking for comment on various proposed bills and media reports that are often inaccurate. It is our job to separate fact from fiction and advice clients on important updates that are relevant. The best way to receive accurate information is through GLF Newsletters.
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