Update on USCIS Efforts to comply with “Buy American and Hire American”

On April 4, 2018, the Director of USCIS, Lee Francis Cissna, penned a letter to Chairman Grassley to update him on USCIS’ efforts to comply with the April 2017 Executive Order, “Buy American, Hire American.” The contents of the letter are broken into three parts: 1) Current action items for USCIS; 2) Past items; and 3) Proposed future items to address. Below are the pending changes, proposed changes, and made changes that have occurred since the Executive Order:

Current Projects

  1. Integrity of the H-1B Program- Third-Party Placements. USCIS recently published a policy memorandum that clarified the existing regulatory requirements for H-1B petitions filed for H-1B workers who will be at a third-party worksite. This includes making clear that employers need to provide an itinerary; USCIS may request detailed documentation, including contracts, and proof that there is a legitimate employer-employee relationship for the specialty occupation, that the work is a specialty occupation, and that the H-1B worker will be paid the wage for the time period requested.
  2. Dedicated hotline: USCIS has established a dedicated email address for the public to report fraud and abuse in the H-1B and H-2B programs.
  3. Site Visits: USCIS is conducting more site visits to focus on H-1B dependent employers, in determining whether the H-1B employers are paying at least the minimum wage level to exempt them from recruitment efforts. These site visits include L-1B workers who are at a third-party site.

Completed Projects

  1. Adjudication for extensions: USCIS released a policy memorandum that instructed officers to adjudicate extension requests with the same standard as initial requests.
  2. TN Nonimmigrant: USCIS published policy guidance clarifying TN nonimmigrant economists be defined by qualifying business activity.

Anticipated Projects

  1. H-4 EAD: USCIS will be working to propose regulatory changes to remove H-4 dependent spouses from the class of foreign nationals who are eligible for work authorization. This will be published for notice and comment.
  2. Electronic Registration for H-1B lottery: USCIS will establish an electronic lottery system so that USCIS can more efficiently manage the intake and lottery process.
  3. Revise the definition of Specialty Occupation: USCIS will work on a proposed regulation to revise the definition of specialty occupation, so that the focus is on recruiting “the best and the brightest,” and also to revise the definition of employment and employer-employee relationship to protect U.S. workers and wages. There will also be proposed requirements designed for employers to pay the appropriate wages to H-1B visa holders.
  4. Removing the Entrepreneur Rule: USCIS is currently drafting a proposed rule to remove the International Entrepreneur Rule.
  5. H-2B program: Nothing specific has been set, but USCIS will be ready to provide assistance on legislative proposals for the H-2B program.

Greenberg Traurig will monitor the changes as set above and post updates as they are received. If you have any questions, please contact our team.

Update on USCIS Efforts to comply with “Buy American and Hire American” On April 4, 2018, the Director of USCIS, Lee Francis Cissna, penned a letter to Chairman Grassley to update him on USCIS’ efforts to comply with the April 2017 Executive Order, “Buy American, Hire American.” The contents of the letter are broken into … Since the introduction of the Executive Order “Buy American, Hire American” (BAHA), federal agencies, including DHS and USCIS, are following the directive to focus on protecting U.S. workers and U.S. resources. The USCIS website was updated as of Dec. 20, 2017 regarding BAHA and below are key highlights from this update, which is essentially a … The Department of Homeland Security (DHS) and The Department of Labor (DOL) have submitted a final rule to the Federal Register, which will be published on July 18, 2017, increasing the number of H-2B visas by 15,000. DHS Secretary John Kelly determined, along with DOL Secretary Alexander Acosta, that there are not enough qualified and …

As a result of extensive deliberations spanning over the course of several years, the Department of Labor (DOL) is closing in on making major changes to the labor certification process, including charging user fees for PERM applications. At present, the electronic PERM process – an initial step in many employment-based permanent residence cases – does … On April 15, 2015, Chief Judge M. Casey Rodgers of the federal district court in the Northern District of Florida extended the stay discussed in a March 18, 2015, blog post until May 15, 2015, thus allowing the Department of Labor (DOL) to continue accepting and processing H-2B prevailing wage and temporary labor certification applications. DOL submitted … U.S. Citizenship and Immigration Services (USCIS) announced March 17, 2015, that it would start adjudicating H-2B petitions again via regular processing. USCIS continues to suspend premium processing on H-2B petitions. As reported in a blog post March 12, 2015, USCIS and the U.S. Department of Labor (DOL) stopped accepting and/or processing applications for H-2B prevailing wages …

As a result of a federal court ruling last week, the U.S. Citizenship and Immigration Services (USCIS) and U.S. Department of Labor (DOL) have shut down the seasonal employment work visa (H-2B) program. USCIS stopped processing H-2B petitions and the DOL stopped accepting and/or processing applications for H-2B prevailing wages and temporary labor certifications. On … On Feb. 21, 2012, the Secretary of Labor issued a Final Rule (Rule) that sought to overhaul the temporary, non-agricultural foreign worker H-2B program for seasonal workers. The rule was preliminarily enjoined by a Federal District Court Judge in the Northern District of Florida barring the Department of Labor from implementing the rule. The 11th … Greenberg Traurig recently reported on the looming expiration of the H-1B and H-2B annual numerical cap exemption in Guam and CNMI, while urging local employers to consider filing extensions for any employee whose H-1B or H-2B authorization expires before December 31, 2014—the date the expiration takes effect. With pervasive Congressional deadlock on the immigration front …

On September 12, 2014, USCIS released the updated “Cap Count” for the H-2B Non-immigrant Visa. The H-2B non-agricultural temporary worker program allows U.S. employers to bring foreign nationals to the United States to fill temporary non-agricultural jobs. Currently, the H-2B cap set by Congress is 66,000 per fiscal year, with 33,000 to be allocated for … The Department of Labor (DOL) has released its FY 2014 statistics on prevailing wage determinations for U.S. employers in connection with the sponsorship for foreign workers. This report provides interesting insight into prevailing wage requests by U.S. employers and their representatives for H-1B petitions, H-2B petitions and PERM labor certifications. It also reveals some broader … On April 1st, the Eleventh Circuit Court of Appeals issued a landmark decision holding that the U.S. Department of Labor (DOL) lacks the authority to issue rules in connection with the H-2B program, which permits U.S. employers or U.S. agents who meet specific regulatory requirements to bring foreign nationals to the United States to fill …

There is a philosophical move fueled by union sympathizers and apparently imbedded in the leadership of this administration to re-engineer the temporary non-immigrant visa programs in such a way as to render them unworkable and unusable.…

Update on USCIS Efforts to comply with “Buy American and Hire American” On April 4, 2018, the Director of USCIS, Lee Francis Cissna, penned a letter to Chairman Grassley to update him on USCIS’ efforts to comply with the April 2017 Executive Order, “Buy American, Hire American.” The contents of the letter are broken into … Greenberg Traurig Laura Reiff, co-chair of Greenberg Traurig’s Immigration and Compliance practice, was recently quoted in the Bloomberg Law article, “Trump Stretches Meaning of Deregulation in Touting Achievements.” The article reviews a list of the administration’s deregulation achievements in 2017, including the H-2B visa program regulation. Reiff highlights the additional requirements placed on businesses that wanted … Since the introduction of the Executive Order “Buy American, Hire American” (BAHA), federal agencies, including DHS and USCIS, are following the directive to focus on protecting U.S. workers and U.S. resources. The USCIS website was updated as of Dec. 20, 2017 regarding BAHA and below are key highlights from this update, which is essentially a …

On August 18, 2017, Rosanna Fox, shareholder in the Immigration & Compliance Practice, spoke on a panel at the 2017 AILA PERM/H-2B Practice Conference, hosted by the American Immigration Lawyers Association, in Seattle, WA. The discussion was entitled “Prevailing Wage Issues: Being Proactive Pays Off!” In most PERM cases, obtaining the prevailing wage is the … The Department of Homeland Security (DHS) and The Department of Labor (DOL) have submitted a final rule to the Federal Register, which will be published on July 18, 2017, increasing the number of H-2B visas by 15,000. DHS Secretary John Kelly determined, along with DOL Secretary Alexander Acosta, that there are not enough qualified and … On April 15, 2015, Chief Judge M. Casey Rodgers of the federal district court in the Northern District of Florida extended the stay discussed in a March 18, 2015, blog post until May 15, 2015, thus allowing the Department of Labor (DOL) to continue accepting and processing H-2B prevailing wage and temporary labor certification applications. DOL submitted …

The Department of Homeland Security (DHS) and The Department of Labor (DOL) have submitted a final rule to the Federal Register, which will be published on July 18, 2017, increasing the number of H-2B visas by 15,000. DHS Secretary John Kelly determined, along with DOL Secretary Alexander Acosta, that there are not enough qualified and willing U.S. workers available to U.S. businesses for the remainder of the fiscal year and that these businesses may suffer “irreparable harm” if they are unable to hire additional workers.

The annual cap for H-2B visas is 66,000, with half available during the first half of the fiscal year, and the remainder available during the latter half. The annual cap of 66,000 was reached on March 13, 2017, and in May 2017 Congress delegated authority to the DOL to determine whether the numbers should be increased. With the additional 15,000 visas added, employers, who can begin submitting petitions this week, will need to attest, under penalty of perjury, that their business is likely to suffer irreparable harm if it cannot employ H-2B workers for the 2017 fiscal year. This attestation will appear on the form that will be filed with the petition. There has also been a new tip line to report general H-2B abuse and employer violations and the information can be submitted to ReportH2BAbuse@uscis.dhs.gov.