US proposes 18-mth delay in calculating prevailing wages of H1B visas
The proposed delay will provide the Department of Labour with sufficient time to consider the rule’s legal and policy issues thoroughly
3/24/2021
The Biden Administration has proposed an 18-month delay in the effective date of a final rule on calculating the prevailing wages of certain immigrants and non-immigrant workers, including those on the popular H-1B visas.
The proposed delay will provide the Department of Labour with sufficient time to consider the rule’s legal and policy issues thoroughly and issue an upcoming Request for Information and gather public comments on the sources and methods for determining prevailing wage levels, an official release said following the announcement on Monday.
This proposed rule follows an initial 60-day delay announced earlier this month. The department based that action on a January 20, 2021, White House memo, the media release said.
News Release
US DEPARTMENT OF LABOR ANNOUNCES PROPOSED 18-MONTH DELAY TO PREVAILING WAGE RULE AFFECTING CERTAIN IMMIGRANTS, NON-IMMIGRANTS
3/24/2021
WASHINGTON, DC – The U.S. Department of Labor has announced that it has proposed an 18-month delay in the effective date of a final rule on calculating prevailing wages of certain immigrants and non-immigrant workers. Published in January 2021, the final rule affects employers seeking to employ foreign workers on a permanent or temporary basis through certain immigrant visas or through H-1B, H-1B1 and E-3 non-immigrant visas.
The proposed delay will provide the department with sufficient time to consider the rule’s legal and policy issues thoroughly, and issue an upcoming Request for Information and gather public comments on the sources and methods for determining prevailing wage levels.
The proposed delay will also give agency officials sufficient time to compute and validate prevailing wage data covering specific occupations and geographic areas, complete necessary system modifications and conduct public outreach. This proposed rule follows an initial 60-day delay announced earlier this month. The department based that action on a Jan. 20, 2021, White House memo.
The Federal Register published the proposal in its March 22, 2021, edition.
Submit comments on the proposed delay for 30-days from its publication at
Agency: Employment and Training Administration
Date: March 22, 2021
Release Number: 21-557-NAT
Contact: Michael Trupo
Phone Number: 202-693-6588
Email: trupo.michael@dol.gov
Source: https://www.dol.gov/newsroom/releases/eta/eta20210322
USCIS May Reopen H-1B Petitions Denied Under Three Rescinded Policy Memos
Release Date 03/12/2021
U.S. Citizenship and Immigration Services today announced it may reopen and/or reconsider adverse decisions on Form I-129, Petition for a Nonimmigrant Worker, made based on three rescinded policy memos. USCIS will generally use its discretion to accept a motion to reopen filed more than 30 days after the decision, if filed before the end of the validity period requested on the petition or labor condition application, whichever is earlier, and the decision was based on one or more policies in the rescinded H-1B memoranda below.
On June 17, 2020, USCIS issued Policy Memorandum 602-0114 (PDF, 379.71 KB), which officially rescinded two prior policy memoranda:
- HQ 70/6.2.8 (AD 10-24), “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements (Reference AFM Chapter 31.3(g)(16)),” issued, Jan. 8, 2010; and
- PM-602-0157 (PDF, 124.09 KB), “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites,” issued Feb. 22, 2018.
On Feb. 3, 2021, USCIS issued Policy Memorandum 602-0142.1 (PDF, 290.6 KB), which officially rescinded:
- PM-602-0142 (PDF, 258.68 KB), “Rescission of the December 22, 2000 ‘Guidance memo on H1B computer related positions’,” issued March 31, 2017.
Both Policy Memorandum 602-0114 and Policy Memorandum 602-0142.1 state that they apply to “any pending or new [H-1B Petitions], including motions on and appeals of revocations and denials of H-1B classification.”
A petitioner may request that USCIS reopen and/or reconsider adverse decisions based on the three rescinded policy memos by properly filing Form I-290B, Notice of Appeal or Motion, accompanied by the appropriate fee. In addition, USCIS has the discretionary authority to accept and consider untimely motions under certain circumstances as explained in the form instructions and permitted by regulation.
Petitioners who received an adverse decision on an H-1B petition based on the now-rescinded policy memoranda should consider whether there is time remaining in the validity period requested on the previously filed H-1B petition and the relevant labor condition application.
Additionally, USCIS recently extended through March 31, 2021, COVID-19 related accommodations that affect the deadlines for filing motions and appeals.
USCIS will generally process motions based on filing order, and consistent with current policy guidance.
USCIS reminds petitioners that even when a motion to reopen or reconsider is filed, accepted, and processed by USCIS, petitions will remain subject to all remaining and relevant eligibility requirements during any reopening or reconsideration.
DHS, Trump Administration Protect American Jobs from Unfair International Competition
Release Date 10/28/2020
Agency Proposes Prioritizing Higher Wage Levels to Better Protect U.S. Workers
WASHINGTON, D.C. — Today, the Department of Homeland Security (DHS) announced the transmission to the Federal Register of a notice of proposed rulemaking (NPRM) that would prioritize the selection of H-1B registrations (or petitions, if the registration process is suspended) based on corresponding wage levels in order to better protect the economic interests of U.S. workers, while still allowing U.S. employers to meet their personnel needs and remain globally competitive.
Modifying the H-1B cap selection process by replacing the random selection process with a wage-level-based selection process is a better way to allocate H-1Bs when demand exceeds supply. If finalized as proposed, this new selection process would incentivize employers to offer higher wages or petition for positions requiring higher skills and higher-skilled workers instead of using the program to fill relatively lower-paid vacancies.
“With this proposed rule, the Trump administration is continuing to deliver on its promise to protect the American worker while strengthening the economy. The H-1B program is often exploited and abused by U.S. employers, and their U.S. clients, primarily seeking to hire foreign workers and pay lower wages,” said Acting DHS Deputy Secretary Ken Cuccinelli. “The current use of random selection to allocate H-1B visas makes it harder for businesses to plan their hiring, fails to leverage the H-1B program to truly compete for the world’s best and brightest, and hurts American workers by bringing in relatively lower-paid foreign labor at the expense of the American workforce.”
This effort would only affect H-1B registrations submitted by prospective petitioners seeking to file H-1B cap-subject petitions. It would be implemented for both the H-1B regular cap and the H-1B advanced degree exemption, but would not change the order of selection between the two as established by the H-1B registration requirement final rule.
DHS will open a public comment period once the NPRM is published in the Federal Register. Interested parties will have 30 days to submit comments relevant to the proposed rule and 60 days to submit comments relevant to the proposed information collection. The Department will review all properly submitted comments, consider them carefully, and draft responses before issuing a final rule.
For more information on USCIS and its programs, please visit uscis.gov or follow us on Twitter (@uscis), Instagram (/uscis), YouTube (/uscis), Facebook (/uscis) and LinkedIn (/uscis).
Premium Processing Fee Increase Effective Oct. 19, 2020
Release Date 10/16/2020
U.S. Citizenship and Immigration Services (USCIS) today announced it will increase fees for premium processing, effective Oct. 19, as required by the Continuing Appropriations Act, 2021 and Other Extensions Act, Pub. L. No. 116-159, signed into law on Oct. 1. The USCIS premium processing service allows petitioners to pay an additional filing fee to expedite the adjudication of certain forms, generally within 15 days. The Act included the Emergency Stopgap USCIS Stabilization Act, which requires USCIS to establish and collect additional premium processing fees, and to use those additional funds for expanded purposes.
Pub. L. No. 116-159 increases the fee for Form I-907, Request for Premium Processing, from $1,440 to $2,500, for all filings except those from petitioners filing Form I-129, Petition for a Nonimmigrant Worker, requesting H-2B or R-1 nonimmigrant status. The premium processing fee for petitioners filing Form I-129 requesting H-2B or R-1 nonimmigrant status is increasing from $1,440 to $1,500.
Any Form I-907 postmarked on or after Oct. 19 must include the new fee amount. If USCIS receives a Form I-907 postmarked on or after Oct. 19 with the incorrect filing fee, we will reject the Form I-907 and return the filing fee. For filings sent by commercial courier (such as UPS, FedEx and DHL), the postmark date is the date reflected on the courier receipt.
Pub. L. No. 116-159 also gives USCIS the ability to expand premium processing to additional forms and benefit requests, but USCIS is not yet taking that action. Any expansion of premium processing to other forms will be implemented as provided in the legislation.
Source: https://www.uscis.gov/news/premium-processing-fee-increase-effective-oct-19-2020
DHS Proposes Rule to Strengthen Affidavit of Support Process
Release Date 10/01/2020
Proposal enforces long-standing law and protects American taxpayers
WASHINGTON—The Department of Homeland Security today announced it will publish a notice of proposed rulemaking (PDF) that would increase the integrity of the nation’s lawful immigration system, make it easier to hold immigrant sponsors accountable for failing to meet the obligations of contracts they sign with the federal government, and align agency policy in accordance with the May 2019 Presidential Memorandum on Enforcing the Legal Responsibilities of Sponsors of Aliens.
“Reforming the immigrant sponsorship process will more effectively protect American taxpayers, ensure that aliens applying for permanent benefits don’t rely on public resources, and strengthen the accountability mechanism against those who fail to financially support aliens they sponsor,” said USCIS Deputy Director for Policy Joseph Edlow. “The department will continue to advance the president’s directive to properly enforce immigration laws and ensure the federal government is reimbursed should sponsored aliens receive public benefits, which is what Congress intended when they passed the relevant legislation.”
The proposed update would require American citizens, U.S. nationals and lawful permanent residents who choose to sponsor an immigrant by submitting a Form I-864, Affidavit of Support Under Section 213A of the INA, or Form I-864EZ, Affidavit of Support Under Section 213A of the INA, to provide credit reports and credit scores, certified copies of income tax returns for the last three years, and bank account information to effectively demonstrate they can maintain the required income.
Additionally, under the proposed rule, any petitioning sponsor found to have received means-tested public benefits within the last 36 months of submitting a Form I-864, or to have defaulted on previous obligations to support an immigrant, must be backed by a joint sponsor who has received no such public benefits during that time.
Other proposed changes include eliminating the subpoena requirement before USCIS can provide certain information to benefit-granting agencies and other parties authorized to pursue civil action against defaulting sponsors, and limiting the type/number of household members who can file a Form I-864A, Contract Between Sponsor and Household Member.
The Affidavit of Support process is required for most family-based immigrants and some employment-based intending immigrants to show that they have adequate means of financial support and are not likely to become a public charge.
For more information on USCIS and its programs, please visit uscis.gov or follow us on Twitter (@uscis), Instagram (/uscis), YouTube (/uscis), Facebook (/uscis) and LinkedIn (/uscis).