Immigration Law Update

October 2020

U.S. Department of Labor Enacts Rule to Raise Prevailing Wages for Foreign Workers

The U.S. Department of Labor issued an Interim Final Rule, which fundamentally changes the methodology for calculating prevailing wages both for H-1B (and E-3) purposes as well as the labor certification process.

The rule has the effect of increasing prevailing wage determinations for all four possible levels of experience. For example, an entry level employee’s salary is now pegged at the 45th percentile of all people who held that job, rather than the previous 17th percentile. Jobs that are in the most experienced category now receive a wage determination pegged at the 95th percentile, rather than the previous 67th percentile. Employers are still permitted to submit private wage surveys to justify a lower wage.

The rule went into effect immediately. It is currently being challenged in court with developments likely to follow.

USCIS Issues Rule to Narrow Requirements for H-1B Status

USCIS published a rule to alter the requirements for H-1B status in several key ways. The new rule is to take effect on December 7, 2020.

Specifically, the new rule seeks to narrow the definition of what constitutes an H-1B specialty occupation by requiring a “direct relationship” between the required degree and the duties of the position. This is meant to make it more difficult for beneficiaries to qualify for H-1B status when their degrees are more general (i.e. business, liberal arts, engineering). It is also meant to make it more challenging when multiple, disparate degrees are acceptable for the position.

Moreover, the new rule makes it more difficult to qualify for H-1B status when a Bachelor’s degree is not universally required for role. Additionally, the new rule applies more restrictive standards on H-1B employment third-party worksites. This rule is also being challenged in Federal Court with developments likely to follow.

New ‘Wealth Test’ Form Required in Adjustment of Status Filings

Due to developments in ongoing litigation challenging the Department of Homeland Security’s public charge rule, USCIS was given preliminary authorization to require the Form I-944, Declaration of Self-Sufficiency.

This form seeks detailed documentation of each adjustment applicant’s financial situation, including federal income tax returns, credit score documentation, health insurance status, and asset documentation. This notably does not change the applicability of a worldwide injunction on a similar rule that applies to similar filings at U.S. Consulates abroad, which is also being challenged in court.

State Department Diversity Visa Lottery Open Until 12:00 PM EST on November 10, 2020

The registration period for the annual Diversity Visa Lottery is officially open. Applicants from countries with historically low rates of immigration to the United States can file now to be included in the drawing for one of 55,000 Diversity Visas (DVs). Please go here for rules on eligibility and instructions on how to apply.

Visa Bulletin Developments from October Lead to Flood of Employment-Based Adjustment of Status Filings

Employment-based immigrant visa quotas advanced rapidly as the new fiscal year opened in October as a result of unused visa numbers from the previous fiscal year in several family categories directly attributable to restrictions on travel/visa issuance from the COVID-19 pandemic. This has resulted in a re-allocation of visa numbers in which unused family-based visa numbers have been moved to various employment-based categories. Those most profoundly affected are the EB-3 worldwide category and the EB-3 categories for people from India and China.

USCIS Fee Increase Halted Through Federal Litigation

In late September a Federal District Court preliminarily halted USCIS from implementing its fee increase rule, determining that USCIS did not follow proper procedures in implementing this rule. This means that the very large fee increases, including more than 80% for naturalization applicants, have not gone into effect. This litigation still is ongoing, and this decision may still be appealed.

Premium Processing Fees Raised to $2,500

Congress passed legislation raising the premium fee from $1,440 to $2,500. This fee increase went into effect on October 19, 2020. USCIS continues to process premium processing filings within 15 calendar days for now, though the agency has made known its desire to change this to 15 business days.

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If you have questions or would like to learn more about the items discussed above or other immigration topics, please contact Karen Moss or Brad Ortman of the Immigration Law Group at Nicola, Gudbranson & Cooper via email or at (216) 621-7227.

Bradley L. Ortman and Karen Gabriel Moss
Nicola, Gudbranson & Cooper LLC

_{This Immigration Law Update contains general information that should not be considered legal advice or legal opinion concerning individual situations. Legal counsel should be consulted for specific advice.}