Rulemaking Redux: DOL Issues Updated Final Rule Adjusting Wage-Level Calculations for H-1B, H-1B1, and E-3 Visa and PERM Cases

On January 12, 2021, the U.S. Department of Labor (DOL) announced an updated final rule designed to increase prevailing wages required for certain visa processes. The updated rule, entitled “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States,” is the DOL’s second attempt in recent months to revise how the existing four-tiered wage structure of the Occupational Employment Statistics (OES) wage survey is calculated for purposes of determining prevailing wages.

DHS Announces Significant Changes to H-1B Cap Selection Process

On January 8, 2021, the U.S. Department of Homeland Security (DHS) published a final rule that significantly alters the longstanding randomized lottery process that U.S. Citizenship and Immigration Services (USCIS) has utilized to select H-1B cap-based petitions.

Trump Administration Extends Visa Bans to March 31, 2021

On December 31, 2020, the Trump administration issued a presidential proclamation extending the ban of entry for certain nonimmigrant and immigrant visas as outlined in its April 22, 2020, and June 22, 2020, proclamations. The ban includes certain applications for H-1B, H-2B, J-1, and L-1 visas for persons who were not present in the United States as of the effective date of the proclamation, as well as all applications for immigrant visa holders.

District Court Invalidates New DOL Wage Regulations for a Third Time in December 2020

On December 14, 2020, the U.S. District Court for the District of Columbia granted a motion for partial summary judgment in favor of the plaintiffs to invalidate recent regulations from the U.S. Department of Labor (DOL), which dramatically increased the prevailing wage methodology that is commonly used for various types of immigration applications. This ruling is the third such loss for the agency in December 2020.

The United Kingdom’s New Points-Based Immigration System

Applications for the new work visa routes for eligible overseas workers who wish to work in the United Kingdom from 1 January 2021 opened on 1 December 2020. Provided applicants meet the criteria, workers from overseas, including the European Economic Area (EEA) and Swiss nationals, are now able to apply online for (among other new entry routes), the skilled worker visa, the intra-company transfer visa and the global talent visa.

Federal Court Decision Saves Work Authorization Program for International Students with STEM Degrees

On November 30, 2020, a federal district judge in the matter of Washington Alliance of Technology Workers v. U.S. Department of Homeland Security, et al., No. 16-1170, issued an order to uphold the Obama-era program permitting extensions of optional practical training (OPT) work authorizations for certain international students with qualifying science, technology, engineering, and math (STEM) degrees.

What Is the U.K.’s Global Talent Visa?

The new Global Talent immigration category is available for talented and promising applicants in the fields of science, engineering, medicine, humanities, digital technology, and arts and culture (including architecture, fashion design, film and television, and literature). The Global Talent visa is very similar to its predecessor, the Tier 1 Exceptional Talent visa; however, it provides a simpler route and expands on the existing rules. The Global Talent visa is no longer part of the points-based system. Instead, the Global Talent visa route consists of two main stages: the endorsement stage and the application stage. An applicant must already be a leader in his or her respective field (i.e., one who is considered an exceptional talent) or a person with the potential to become a leader in his or her field (i.e., one who shows exceptional promise).

District Court Invalidates New DOL and DHS H-1B Regulations

On December 1, 2020, the U.S. District Court for the Northern District of California granted a motion for summary judgment in favor of the plaintiffs that had requested to set aside two new regulations from the U.S. Department of Labor (DOL) and the U.S. Department of Homeland Security (DHS). The two rules, both published as interim final rules, changed the way Occupational Employment Statistics (OES) prevailing wages are calculated and changed the definition of a “specialty occupation”. As interim final rules, the DOL and the DHS bypassed the traditional, lengthier notice and comment rulemaking process under the Administrative Procedures Act (APA), with both agencies invoking the good cause exception and citing to the emergent circumstances created by the COVID-19 pandemic.

Public Charge Rule Survives (For Now)

On November 3, 2020, the U.S. Court of Appeals for the Seventh Circuit temporarily stayed an order that the U.S. District Court for the Northern District of Illinois issued in Cook County, Illinois, et al. v. Wolf et al., No. 19-cv-6334 (November 2, 2020). The district court’s order had vacated the U.S. Department of Homeland Security’s (DHS) Inadmissibility on Public Charge Grounds final rule (often referred to as the “public charge rule”) on a nationwide basis.

DHS Proposes Shift to Wage-Based H-1B Selection Process

On November 2, 2020, the U.S. Department of Homeland Security (DHS) published a proposed rule that, if implemented, would amend the process by which U.S. Citizenship and Immigration Services (USCIS) selects H-1B registrations for H-1B cap-subject petitions. The proposed rule would replace the current H-1B random selection lottery process with a wage-based selection process, giving preference to applications for higher-paying positions.

DHS Issues Interim Final Rule Defining Key Practices for Adjudicating H-1B Third-Party Placement Petitions

On October 8, 2020, the U.S. Department of Homeland Security (DHS) published its interim final rule, “Strengthening the H-1B Nonimmigrant Visa Classification Program,” which will become effective December 7, 2020. This rule brings clarity to prior U.S. Citizenship and Immigration Services (USCIS) adjudication policies that had been interpreted through two internal memoranda—Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements and Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites.

DHS Issues Interim Final Rule to Restrict Requirements for H-1B Visa Classification

On October 8, 2020, the U.S. Department of Homeland Security (DHS) published its long-speculated interim final rule, “Strengthening the H-1B Nonimmigrant Visa Classification Program.” According to the interim final rule’s summary, the purpose of the new rule is to “strengthen the integrity of the H-1B program during the economic crisis caused by the COVID-19 public health emergency to more effectively ensure that the employment of H-1B workers will not have an adverse impact on the wages and working conditions of similarly employed U.S. workers.”

USCIS to Expand Premium Processing Program, Increase Fee Rates

On October 1, 2020, President Donald Trump signed into law a stopgap spending measure to fund the U.S. government through December 11, 2020. The spending measure includes a provision titled “Emergency Stopgap USCIS Stabilization Act,” which authorizes U.S. Citizenship and Immigration Services (USCIS) to expand the premium processing program and to increase program fees.

DHS Partially Enjoined From Enforcing Proclamation Suspending Entry of Certain Foreign Nationals

On October 1, 2020, the United States District Court for the Northern District of California issued a limited preliminary injunction enjoining the U.S. Department of Homeland Security (DHS) from “implementing, enforcing, or otherwise carrying out” Section 2 of Presidential Proclamation 10052 of June 22, 2020, which suspended the entry of individuals into the United States on select nonimmigrant visas.

DOL Issues Interim Final Rule Adjusting Wage Level Calculations for H-1B, H-1B1, E-3 Visa and PERM Programs

On October 8, 2020, the U.S. Department of Labor (DOL) published its long-speculated interim final rule, “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States.” The new rule will update how the existing “four-tiered wage structure based on the Occupational Employment Statistics (OES) wage survey” is calculated for purposes of determining prevailing wages. The rule goes into effect immediately on October 8, 2020, with no notice period. These changes will result in significant wage increases to the wage levels for all four levels of the OES survey, across all occupations. The wage adjustments will affect the processing of H-1B, H-1B1, and E-3 temporary work visas, as well as permanent labor certification program (PERM) applications.

Federal Judge Blocks USCIS Immigration Fee Increases

On September 29, 2020, Judge Jeffrey S. White of the U.S. District Court for the Northern District of California issued a nationwide preliminary injunction enjoining the U.S. Department of Homeland Security’s (DHS) proposed fee increases for U.S. Citizenship and Immigration Services’ (USCIS) immigration and citizenship applications. The final rule adjusting the fees was set to take effect on October 2, 2020, with some case types set to see substantial fee increases.

USCIS to Resume Implementing Public Charge Rule Nationwide

On September 22, 2020, U.S. Citizenship and Immigration Services (USCIS) updated its website to indicate that it would resume implementing the Inadmissibility on Public Charge Grounds final rule (often referred to as the “public charge rule”) on a nationwide basis. The updated policy follows a series of recent federal court decisions on the controversial rule. The most recent of these decisions, issued on September 11, 2020, by the United States Court of Appeals for the Second Circuit, lifted a temporary injunction blocking the U.S. Department of Homeland Security and USCIS from implementing the rule, including within the Second Circuit states of New York, Connecticut, and Vermont.

DHS Proposal Would Expand Biometrics Collection and Use for Immigration Enforcement

On September 11, 2020, the U.S. Department of Homeland Security (DHS) proposed a regulation that focuses on the expansion of the collection and use of biometric data in the enforcement and administration of immigration laws. The proposed rule would subject foreign nationals to periodic biometrics collection and continuous vetting after they enter the United States and until they become U.S. citizens.

State Department Issues Guidance on National Interest Exceptions to Proclamations Suspending Entry of Certain Foreign Nationals

On August 12, 2020, the U.S. Department of State issued guidance on scenarios that may qualify for a “national interest exception” under Presidential Proclamation 10052 of June 22, 2020 (“Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak”) and Presidential Proclamation 10014 of April 22, 2020 (“Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak”). Citing economic disruptions caused by the COVID-19 pandemic, President Donald Trump issued the proclamations and temporarily suspended the entry of certain foreign nationals into the United States. Although both proclamations referenced exceptions for individuals “whose entry would be in the national interest,” formal guidance had not been released prior to this announcement.

USCIS Issues Updated I-9 Guidance Due to Employment Authorization Document Production Delays

As the U.S. Citizenship and Immigration Services (USCIS) continues to operate under the stress of the ongoing COVID-19 pandemic and anticipated budget shortfalls, the production of certain Employment Authorization Documents (Form I-766, EAD) has become increasingly delayed. On August 19, 2020, in response to this situation, USCIS issued guidance providing employers and employees some flexibility to mitigate the myriad of I-9 compliance issues associated with the delays in EAD production.

Second Circuit Limits Scope of Injunction on Public Charge Rule to Connecticut, New York, and Vermont

On August 12, 2020, the United States Court of Appeals for the Second Circuit limited the scope of a nationwide injunction that had blocked the U.S. Department of Homeland Security (DHS) and U.S. Citizenship and Immigration Services (USCIS) from implementing and enforcing the Inadmissibility on Public Charge Grounds final rule (commonly called the “public charge rule”) during the COVID-19 pandemic. The decision, which came only days after a series of recent federal court decisions on the controversial rule, restricts the scope of the nationwide injunction to only those states under the jurisdiction of the Second Circuit.

New Executive Order Calls for Review of Federal Contracts and Directs Agencies to Take Action to Protect U.S. Workers

On August 3, 2020, the Trump Administration issued an executive order  (EO) directing the secretaries of the Departments of Labor and Homeland Security to “take action … to protect United States workers from any adverse effects on wages and working conditions caused by the employment of H-1B [workers].”

Upcoming Changes to the UK Immigration System: Further Details for Employers

On 13 July 2020, the UK Home Office published further details on the UK’s points-based system through a detailed policy statement regarding the changes to the UK immigration system due to come into effect from 1 January 2021, once freedom of movement with the European Union has ended. The document builds on the policy statement published in February 2020 and aims to provide “more detail to applicants, employers and educational institutions on the draft requirements and conditions underpinning the key immigration routes in the Points-Based System.”

ICE Issues Updated Guidance and Restricts Online Options for New Students for Fall 2020 Semester

On July 24, 2020, U.S. Immigration and Customs Enforcement’s (ICE) Student and Exchange Visitor Program (SEVP) issued updated guidance for international students pursing education programs in the United States. The follow-up guidance states that active students in F-1 and M-1 status, as well as schools certified by SEVP, should abide by SEVP guidance originally issued in March 2020, enabling schools and students to engage in distance learning in excess of regulatory limits during the COVID-19 public health emergency.