As a result of the COVID-19 pandemic, and the Trump Administration’s efforts to protect U.S. workers and wages, there have been several U.S. immigration developments in the last few weeks.  This writing will provide an update of some of these recent U.S. immigration developments and the potential impact on U.S. employers and foreign nationals.

  • Department of State (DOS) Visa Bulletins for October 2020 and November 2020. On September 24, 2020, DOS issued its monthly bulletin that announced a surplus of employment-based immigrant visas: a total of 261,500 for FY 2021 which commenced on October 1, 2020. This was the result of major slowdowns in family-based immigrant visa processing during FY 2020, as a result of the COVID-19 pandemic. In addition, USCIS announced that it will permit immigrant applicants to file their Adjustment of Status (AOS) applications based on the “Dates for Filing” chart in the October 2020 Visa Bulletin. The Visa Bulletin for November 2020, which was released at the very end of October 2020, is consistent with the Visa Bulletin for October 2020. USCIS also indicated the “Dates for Filing” chart will be used for November 2020, as well.  As a result of the positive movement in the Employment-Based, Third Preference (EB-3) category for India in the October 2020 and November 2020 Visa Bulletins, Indian nationals in the U.S. who had been waiting years to file an Application to Register Permanent Residence or Adjust Status (Form I-485) were now able to move forward with the last step of the U.S. Green Card application process.
  • Trump Administration Expands Premium Processing. On September 30, 2020, President Trump signed into law House Rule 8337 that gives the Department of Homeland Security (DHS) immediate authority to increase Premium Processing fees and to expand Premium Processing services. It increased the current Premium Processing fee from $1,440.00 to $2,500.00, except for H-2B (temporary workers) petitions and R (religious workers) petitions. The new law also allows for USCIS to expand Premium Processing Service to other immigration benefit types, not already subject to Premium Processing Service prior. USCIS employment-based green card petitions, such as the EB-1 Multi-National Manager and Executive petitions and EB-2 National Interest Waiver petitions may be eligible for Premium Processing Service. In addition, Applications for Employment Authorization (Form I-765) and certain Applications to Extend or Change Nonimmigrant Status (Form I-539) may be eligible for Premium Processing Service in the future. The act also permits USCIS to raise or set Premium Processing fees for certain categories without following the normal rule making process, provided certain benchmarks (including processing times) are met.[1]  It is important to note that it may take several weeks or months for USCIS to implement the expansion of Premium Processing Service to other immigration benefit types.
  • U.S. District Court Judge Issues Preliminary Injunction Against Presidential Proclamation 10052. On October 1, 2020, a U.S. District Judge ruled that President Trump exceeded his authority when he issued Proclamation 10052 on June 22, 2020. Proclamation 10052 restricts certain foreign nationals who hold nonimmigrant visas issued on or after June 24, 2020 in the H-1B, H-2B, J or L categories from using these to enter the U.S.  It also restricts the ability of foreign nationals from applying for these visa types. In the decision, the U.S. District Judge determined President Trump exceeded his authority by effectively nullifying significant portions of the Immigration and Nationality Act (INA) and that his Administration had not established a factual basis to support its claims that the Proclamation 10052 was designed to protect American jobs. The injunction issued by the U.S. District Court Judge only provides relief to the plaintiffs in the case and is not a nationwide injunction.  The plaintiffs in the lawsuit were the U.S. Chamber of Commerce, the National Retail Federation, the National Association of Manufacturers, Technet, and Intrax, Inc.  Employers that are members of these organizations, and that sponsored foreign nationals for the H-1B, L-1, H-2B, or J-1 categories, would not be subject to Proclamation 10052.  Evidence of membership in these organizations by the sponsoring employer may be presented by the foreign national to the U.S. embassy or consulate in order to show the foreign national is not subject to Proclamation 10052.
  • USCIS Issues Guidance on Inadmissibility. On October 2, 2020, the USCIS issued guidance that addressed the issue of inadmissibility based on membership in, or affiliation with, the Communist Party or any other totalitarian party. A new section in the USCIS Policy Manual provides guidance on how to adjudicate the issue of inadmissibility as a result of membership in the Communist Party or any other totalitarian party in the context of applying for a U.S. Green Card. Unless otherwise exempt, any intending immigrant who is a member or affiliate of the Communist Party or any other totalitarian party (or subdivision or affiliate), domestic or foreign, is inadmissible to the U.S.  As a sign of the ongoing deterioration in U.S.-Chinese relations, the Chinese state affiliated media responded to the new USCIS guidance by tweeting “Many outstanding talents in China are Communist Party members. The decision by the US helps keep more talents in China since it takes out their illusion. Not bad. What’s more, non-CPC members now have much less interest in immigrating to the U.S.”[2]
  • Trump Administration Issues Sweeping Interim Final Rules (IFRs) for H-1B, H-1B1, and E-3 Visa Programs, and for Determining Prevailing Wage Rates. On October 6, 2020, the US Department of Homeland Security (DHS) and the US Department of Labor (DOL) issued two Interim Final Rules (IFRs) that introduced significant changes with respect to the H-1B, H-1B1, and E-3 visa programs and to the wage levels in connection with these programs. The Trump Administration did not provide a notice and comment period for either rule; and the White House’s Office of Information and Regulatory Affairs waived review of both rules before they were issued in the Federal Register.

The DHS rule introduces significant changes to the H-1B program and will go into effect on December 7, 2020. The rule revises the definition of the term “specialty occupation” by restricting the educational degree requirements and requiring employers to demonstrate that the proffered H-1B position requires a bachelor’s degree in a specific specialty or its equivalent. The rule also revises the term ‘employer-employee relationship’ to introduce more factors for USCIS officers to consider when determining whether such a relationship exists and puts more restrictions on contractors who place H-1B workers at third-party locations. In addition, the new rule limits the H-1B validity period for third-party placement petitions to a maximum period of one year. DHS said the interim final rule will impose new annual costs of almost $25 million for petitioners. 

The DOL rule dramatically increases the prevailing wage levels in connection with the filing of a Labor Condition Application (LCA) for H-1B, H-1B1, and E-3 petitions. The DOL rule went into effect on Thursday, October 8, 2020. Level I has increased from the 17th to the 45th percentile; Level 2 from the 34th to the 62nd percentile; Level 3 from the 50th to the 78th percentile; and Level 4 from the 67th to the 95th percentile. According to DOL’s Office of Foreign Labor Certification (OFLC), the IFR will apply to:

  • Applications for Prevailing Wage Determination, Form ETA-9141, pending with OFLC’s National Prevailing Wage Center (NPWC) as of the effective date of the regulation;
  • Applications for Prevailing Wage Determination, Form ETA-9141, filed with the NPWC on or after the effective date of the regulation;
  • Labor Condition Applications for Nonimmigrant Workers (LCA), Form ETA-9035/9035E, filed with OFLC on or after the effective date of the regulation where the Occupation Employment Statistics (OES) survey data is the prevailing wage sources, and where the employer did not obtain the prevailing wage determination from the NPWC before the effective date of the regulation.

An analysis of the DOL wage rule by the National Foundation for American Policy (NFAP) concluded that “the significant increases in the mandated minimum salaries would lead a rational observer to conclude the purpose of the DOL wage rule is to price foreign nationals out of the U.S. labor market.”[3]

  • Lawsuits Filed to Challenge the DHS and DOL Interim Final Rules. Since the issuance of the DHS and DOL Interim Final Rules (IFRs) on October 6, 2020, there have been several lawsuits filed challenging the legality of the new IFRs both on procedural and statutory grounds.
    • On October 16, 2020, the first such suit, ITServe Alliance, Inc., et al v. Scalia et al was filed in U.S. District Court in New Jersey on behalf of a consortium of technology consulting firms. This suit, like the others, argues that DOL inappropriately adjusted the Level I prevailing wage rate upward on the assumption that wages paid to individuals with a master’s degree represent entry-level wages, leading to dramatic overnight increases in wage rates. The suit argues that new wage rates are “set under a novel standard that conflicts with the governing statutory criteria” and are “arbitrary and capricious because the agency relied on outdated, incorrect, or limited empirical data, failed to consider readily available, relevant data and empirical studies, and engaged in reasoning that conflicts with basic economic theory.” The plaintiffs also contend that DOL “failed to afford employers or the public with any advance notice or opportunity to comment on the facts, the agency’s reasoning, the economic implications, or the feasibility or detrimental effects of the rule.” The plaintiffs are seeking a preliminary and permanent injunction to stop DOL from imposing the new wage rates.
    • On October 19, 2020, a group of mainly educational institutions filed a suit, Purdue University et al v. Scalia et al., in the U.S. District Court of Washington D.C. The plaintiffs argue that  the DOL interim final H-1B rule was posted "unnecessarily and without regard to the disastrous consequences to the public" and was made effective less than 48 hours later without following the legal requirement for advance public notice or providing an opportunity for comment before the rule was made effective. The lawsuit states that the rule was "unlawfully and intentionally meant to upset the U.S. labor market and disrupt the way businesses operate." The suit particularly focused on the impact of the DOL wage rule to universities and tech companies. By dramatically raising wage levels, the rule will particularly affect start-up companies and research and development firms who will “simply have to outsource those jobs overseas.” Moreover, with respect to universities: “the changes to the wage structure imposed by the IFR will create a substantial financial hardship by raising wages at time when higher education has already faced great economic challenges due to the impact of the COVID-19.”
    • On October 19, 2020, a consortia of business and trade interest groups filed a suit, U.S. Chamber of Commerce et al. v. DHS et al. This suit, unlike the other two lawsuits, challenges both the DOL and the DHS IFRs. The other two lawsuits only challenge the DOL’s IFR. The lawsuit contends that the IFRs will force U.S. businesses to incur significant additional costs. It states that “DOL calculates that its Rule alone will result in at least $189 billion in costs imposed on employers over a 10-year period” and that, unless enjoined, “these Rules will shatter long-held reliance interests, causing enormous loss of productivity, creativity, and innovation.”
  • DOS Proposes to Eliminate “B-1 In Lieu of H” Policy. On October 21, 2020, DOS issued a proposal in the Federal Register [Public Notice 11221] to amend the regulation governing nonimmigrant visas for temporary visitors of business. If approved, the amended rule would “no longer authorize issuance of B-1 visas for certain aliens classifiable as H-1B or H-3 nonimmigrants, commonly referred to as the ‘B-1 in lieu of H’ policy, unless the alien independently qualifies for a B-1 visa for a reason other than the B-1 in lieu of H Policy.”[4]  Comments from the public are due by December 21, 2020.
  • Department of Homeland Security (DHS) Proposes to Replace H-1B Cap Random Selection Process with Wage-Based Selection Process. On October 28, 2020, DHS announced a notice of proposed rulemaking to amend the regulations governing the process by which the US Citizenship and Immigration Services (USCIS) selects H-1B registrations for filing of H-1B cap-subject petitions. Under the proposed rule, DHS would no longer conduct a random selection process for H-1B visas, but, rather, would rank and distribute visa slots based on the highest salaries paid to the beneficiaries by employers. If finalized as proposed, USCIS would first select registrations in which Level 4 wages are to be paid, and then Level 3, Level 2, and Level 1, provided there are remaining slots available.   However, given the number of registrations projected to be submitted, it appears that in order to have a chance at selection, an employer would be forced to pay a Level 4 or Level 3 wage to foreign nationals, which is a considerable cost increase for employers, given the new DOL’s IFR, which increased prevailing wage levels.  The proposed rule modifying the H-1B selection process will be subject to a notice and comment period following publication.  Interested parties will have 30 days to submit comments relevant to the proposed rule.  It is likely the new rule will face legal challenges, especially from the IT industry, which relies heavily on the H-1B program, as well as from higher education institutions. If the new rule becomes final and allowed to stand, it would end the random selection process by which H-1Bs had been chosen in the past, and result in H-1B slots to be awarded to petitions filed at the highest wage levels.