Announced via Tweet by Chad Wolf, Acting Secretary of the Department of Homeland Security, the COVID-related restrictions at the Canadian and Mexican borders have been extended yet again until November 21, 2020. These restrictions apply to land and sea entries and prevent entry for non-essential purposes. Although there continues to be some inconsistency at ports of entry, travel for work is generally permitted whereas travel for tourism including sightseeing, recreation, and cultural events is not considered to be “essential.”

For the first time since instituted, Acting Secretary Wolf indicated that these restrictions may ease in the future.

If you have questions about these restrictions as well as Canadian quarantine requirements, Jackson Lewis attorneys are available to assist.

The B-1 in lieu of H-1B visa has been used by international companies to bring employees who remain on payrolls abroad to the United States for short periods of time (generally fewer than six months) to do professional level work that benefits the company abroad. Through the rulemaking process, the Department of State is proposing to eliminate the B-1 in lieu of H-1B.

This is the government’s latest move under the authority of President Donald Trump’s Buy American, Hire American Executive Order. Others include the proclamation that was meant to block the entry of individuals in H-1B status on account of COVID-19 and new rules that would upend settled employment expectations by tightening H-1B regulations and raising H-1B wages – all of which are subjects of litigation.

According to DOS, only about 6,000 – 8,000 of these visas are issued annually. The Administration continues to rigorously enforce its mandate to protect economic interests in the United States and the B-1 in lieu of H-1B is the most recent casualty. The rationale is that these individuals enter the United States in B-1 in lieu of H-1B status without complying with the more rigorous prevailing wage requirements of an H-1B or filing petitions with USCIS, depriving USCIS of its filing fees. But in most instances, B-1 in lieu of H-1B status is used conscientiously and foreign workers do not replace U.S. workers – they are doing work for the benefit of a foreign entity for a very limited period. If the proposed rule goes in effect, only employees who qualify for “regular” B-1 status as business visitors will be allowed to use B-1 business visas. This would include, among other things, engaging in commercial transactions that do not involve gainful employment, taking orders, negotiating contracts, consulting with business associates, participating in litigation, attending conventions, conferences or seminars, and undertaking independent research.

Comments on the proposed rule may be submitted until December 21, 2020. If the new rule is enacted, those with valid B-1 in lieu of H-1B visas at that time will not have their statuses revoked. However, the proposed rule notes that individuals will be subject to independent reviews by the Department of Homeland Security upon entry into the United States. This may suggest that travelling in B-1 in lieu of H-1B status might become risky.

Jackson Lewis attorneys are available to assist you with questions about how this proposed rule might affect your employees, and we will provide updates as they become available.

 

Business groups, universities, and technology consulting firms have filed suits seeking to enjoin the new rules on H-1B and PERM labor certification programs issued by the Department of Homeland Security (DHS) and the Department of Labor (DOL) on October 8, 2020.

Those rules, both issued as Interim Final rules and without the usual notice and comment, could upend the H-1B and PERM labor certification programs by changing statutory definitions, targeting staffing and consulting firms with onerous requirements, and hiking required wages by 35% to 200%. To date, three separate lawsuits have been filed in federal district court, seeking to enjoin implementation of the new rules.

The complaint filed in California, Chamber of Commerce of the United States of America et al. v. the Departments of Homeland Security and Labor, et al., challenges both the Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States Rule and the Strengthening of the H-1B Nonimmigrant Visa Classification Rule.

The plaintiffs, which include the U.S. Chamber of Commerce, the National Association of Manufacturers, and a number of universities and associations, contend that the new rules will “substantially restrict, if not outright eliminate, the H-1B visa category.” Nonetheless, the government issued both rules without notice and comment rulemaking and without establishing “good cause,” in violation of the Administrative Procedures Act (APA). The plaintiffs’ additional arguments include:

  • An injunction is necessary to maintain employment-based immigration programs and preserve thousands of jobs that are essential to the economy;
  • COVID-19 is just a pretext for the adoption of these rules because both have been on the table since 2017 when the Trump Administration took office;
  • The new H-1B definitions are at odds with the relevant statutes;
  • There was no good cause for bypassing the usual notice and comment period, especially when the rules could cost employers as much as $200 billion;
  • The Administration’s contention that COVID-19 has created an unprecedented economic cataclysm that requires these interventions is contradicted by Trump’s tweets contending that the economy is booming;
  • There is no evidence these rules will protect U.S. workers because unemployment is low in high tech, the industry that uses the lion’s share of H-1B visas; and
  • The wages set by the DOL rule do not match reality and are just a poison pill meant to ruin the H-1B and PERM programs.

The Chamber plaintiffs further argue that the Administration once again has failed to adequately consider the reliance interests involved.

As of 2019, DHS estimated that there are 580,000 workers in H-1B status. Many of those have left their homes abroad, bought homes, and built families and lives in the United States in reliance on a stable immigration system that now could be turned upside down. Employers have built facilities and business strategies based on settled expectations about the U.S. immigration system.

The plaintiffs ask the court to enjoin implementation of both rules.

Jackson Lewis attorneys will follow these suits and provide updates as soon as they become available. The DOL Wage Rule has already gone into effect and, absent an injunction, the DHS H-1B Rule will go into effect on December 8, 2020.

 

 

E-Verify will no longer allow extensions for addressing Tentative Nonconfirmations (TNCs) beginning November 5, 2020.

After relaxing processing guidelines because of processing hardships due to COVID-19, E-Verify is again enforcing its requirement that employees choosing to contest TNC notifications must take action to contact the appropriate government agency within 10 federal government workdays.

TNCs are issued when the data entered in E-Verify does not match the available Social Security Administration (SSA) or Department of Homeland Security (DHS) records. A TNC does not necessarily mean an employee is not authorized to work in the United States. TNCs can be issued for many reasons, including typographical errors, legitimate name changes, mistakes in birth dates, incorrectly recorded passport or A-numbers, and immigration status changes. An employer should not terminate an employee based upon a TNC notification. Rather, it should follow the regulated steps for meeting with the employee as soon as possible to review the TNC notification and attempt to resolve the mismatch.

A TNC notification issued by E-Verify triggers regulated steps that must be followed to notify the employee immediately. If the employee chooses to “contest” the mismatch, the employer must note this choice in E-Verify. E-Verify will issue instructions to provide to the employee for how to contact SSA or DHS to resolve the problem. Then, within 10 federal workdays, the employee must follow the E-Verify instructions and contact the appropriate agency to keep the case working toward resolution. The employer will be notified when the issue has been resolved. The employee may remain working during this wait period, however long it lasts. When the issue is resolved, E-Verify will notify the employer and provide instructions for closing the E-Verify case for that employee.

If E-Verify cannot resolve the issue, or if the employee does not contact the agency as instructed, E-Verify will issue a Final Nonconfirmation (FNC), which advises the employer to terminate the employee. The employer will have to note in E-Verify whether the employee remains employed, despite the FNC, or whether the employee has been terminated.

If the employee decides to “not contest” the mismatch, the employer must note this choice in E-Verify. E-Verify will instruct the employer to terminate the employee and close the case.

Failure to close TNC cases in E-Verify suggests to the government that employers are not referring cases to SSA or DHS when employees chose to take action to resolve TNCs or closing cases in the system when employees chose not to take any action to resolve the problem.

It is critical that employers pay attention to timing requirements within E-Verify and close out cases in a timely manner. If you have questions about how to appropriately respond to TNCs or would like to arrange for an E-Verify training webinar, please reach out to your Jackson Lewis attorney.

Due to the COVID-19 experience, some employers and employees are exploring the idea that work may be carried out remotely. Countries with economies that rely heavily on tourism (and hard-hit by the pandemic) are using this to their advantage.

In the United States, business advocacy groups and many companies have been urging the removal of the current COVID-19-related restrictions on immigrant and nonimmigrant visas based on Presidential Proclamations with little effect. They say the restrictions “disserve the interests of the United States by stifling the ability of U.S. businesses to attract the world’s best talent, drive innovation and further American economic prosperity.” Studies show that when employers are faced with constraints, they are more likely to outsource jobs than hire more U.S. workers. Outsourcing results in a reduction in the number of employees buying consumer goods and homes in the United States — delivering another blow to the economy.

“Digital nomads” or “location-independent” workers are not a new phenomenon, but the COVID-19 pandemic has increased their numbers. People who are working remotely, whether for specific employers or as “gig” workers, are seeing some advantages in working from countries that may have lower COVID-19 rates and lower living costs. Countries such as Barbados, Bermuda, and Georgia, among others, are catering to these constituencies and offering special visa programs.

The visa programs offer a variety of services, including high-speed, fiber optic internet, workspaces, and accommodations, at various budget levels, access to schools for families, and access to a vacation-like atmosphere. Lower COVID-19 infection rates is the added attraction.  Applicants must satisfy the eligibility requirements, including income levels, health insurance, and COVID-19 testing (and, perhaps, a quarantine period).

In response to the COVID-19 pandemic, Barbados was the first country to offer its 12-month Welcome Stamp program. Bermuda followed. The Republic of Georgia and Estonia offer similar programs. Others include:

Each country has its own requirements and application procedures – some quite complex – and counsel must consider the legal immigration, tax, employment law, and benefit implications, among other things. It is also important to review Department of State and Centers for Disease Control and Prevention Travel Advisories.

As remote work becomes more pervasive, more countries are opening their doors to location-independent workers. Please reach out to your Jackson Lewis attorney if you have questions about how your company might take advantage of some of these new options when the process of bringing foreign workers to the U.S. is being hampered by various travel restrictions.

 

 

The Department of Homeland Security (DHS) has released yet another rule that will make it harder and more costly for U.S. companies to employ highly skilled workers.

As a companion regulation to the “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States” rule, DHS has released the “Strengthening of the H-1B Nonimmigrant Visa Classification” rule. Like its companion, it is being published as an Interim Final Rule (IFR), but will go into effect after 60 days. DHS expects about one-third of petitions for H-1B visa classification will be denied under the new rule.

The H-1B Rule codifies policies USCIS has been pursuing over the past several years that made it more difficult to obtain H-1B approvals and resulted in more Requests for Evidence (RFEs) and petition denials — all without transparent legislative or regulatory changes. Employers sued the administration in federal court arguing that a number of these policies were “arbitrary and capricious” in violation the Administrative Procedures Act (APA). In response, USCIS settled the cases and agreed to withdraw a number of the most contentious agency policies. In response, DHS is now intending to reimplement many of those policies through the truncated Interim Final rulemaking process. DHS contends that this is necessary in order to protect U.S. jobs during the current COVID-19-related economic downturn. Companies that employ H-1B workers maintain that access to these skilled workers is essential to ongoing operations and benefits the U.S. economy.

Key takeaways of the new rule for employers:

  • The definition of a “specialty occupation” is revised to focus more specifically on the relationship between the degree requirements and the duties of the position. This will make it more difficult for those in new, innovative fields, where specific specialty degrees are not yet even available.
  • Petitioners will bear the burden of showing a specific bachelor’s degree is always a requirement, not just “normally” a requirement for the position, a near impossible task.
  • Contractors will no longer be specifically listed among those who qualify as U.S. employers, although they can still qualify as U.S. employers by proving a bona fide employer-employee relationship.
  • The definition of a bona fide employer-employee relationship will focus more heavily on a totality of circumstances standard, rather than any one factor, such as the right to control.
  • H-1B workers at third-party locations will be limited to one year, rather than the currently available three years, renewable annually. Petitioning employers intending to place H-1B workers at third-party worksites will have to provide corroborating evidence to prove that specialty occupation work will be available throughout the requested time period. These changes will greatly increase the costs and documentary requirements for certain petitioners who rely on third-party placements.
  • The H-1B Rule codifies the scope and potential consequences of USCIS Fraud Detection and National Security Officers (FDNS) worksite inspections. If the FDNS is not able to verify facts related to an H-1B petition or compliance with H-1B requirements due to the failure or refusal of the petitioner or third party to cooperate, such failure may be grounds for denial or revocation of a petition.

Because this far reaching rule is being issued as an Interim Final regulation without opportunity for full notice and comment, litigation seeking to enjoin implementation is likely.  In addition, the rule is likely to be challenged while the validity of Chad Wolf’s appointment as Acting Director of DHS is still being contested.

If you have any questions about how the H-1B Rule will affect your company, please reach out to your Jackson Lewis attorney.

 

After months of speculation, the Department of Labor’s (DOL’s) “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States” rule was finally released to the public.  It will be published in the Federal Register on October 8, 2020 and will go into effect immediately upon publication.  The rule’s wage hikes, put forward with little notice, could upend the hiring and retention practices of companies that use and rely on highly skilled foreign employees.

The Restructuring rule will significantly raise the wages required for H-1B, H-1B1, E-3 and PERM eligibility.  There are currently four DOL wage levels based upon the duties and requirements of the job.

  • Level I = Beginning level employees who need close supervision
  • Level II = Fully competent employees who can use independent judgment and independent evaluation when performing job duties
  • Level III = Experienced employees with a sound understanding of the occupation
  • Level IV = Fully qualified employees who have enough experience to use independent judgment and independent evaluation to plan, modify and approve standard procedures and techniques

The minimum wages for each level are based on DOL’s calculation of the local median salary for the specific position.

  • Level I is currently set at the 17th Percentile
  • Level II is currently set at the 34th Percentile
  • Level III is currently set at the 50th Percentile
  • Level IV is currently set at the 67th Percentile

On October 8th, the Restructuring rule will change these percentages dramatically – by 20% or more.

  • Level I will move to the 45th Percentile
  • Level II will move to the 62nd Percentile
  • Level III will move to the 78th Percentile
  • Level IV will move to the 95% Percentile

This dramatic change will make it nearly impossible for companies to hire Level I or Level II employees unless they are paid at the level of experienced employees.  DOL has apparently concluded that this restructuring will eliminate what it believes to be the downward distortion of wages due to the existence of workers in their wage surveys who lack the requisite “specialty occupation” credentials but who may nonetheless be capable of doing the job.  This rule appears to be yet another regulation issued by the Trump Administration designed to make it increasingly difficult for U.S. employers to bring highly skilled foreign nationals into the U.S. workforce.

The new rule applies to:

  • Labor Condition Applications (Form ETA-9035/9035E) filed on or after October 8, 2020 (the effective date of the regulation) where the prevailing wage source is Occupational Employment Statistics (OES) survey data and where the employer did not obtain the prevailing wage determination from the OFLC National Prevailing Wage Center (NPWC) prior to October 8, 2020
  • Applications for Prevailing Wage Determinations (Form ETA-9141) pending with the OFLC NPWC as of October 8, 2020
  • Applications for Prevailing Wage Determinations (Form ETA-9141) filed with the OFLC NPWC on or after October 8, 2020

The revised OES prevailing wage data for each SOC Code and area of intended employment will be available on October 8, 2020.  The agency expects that there will be a brief delay in issuing prevailing wage determinations (Form ETA-9141) due to required technical changes to the FLAG system.

Employers, employers’ associations, and foreign nationals may well sue the government to stop the rule from going into effect.  Jackson Lewis attorneys are available to advise you on the implications of the Restructuring rule.

 

Premium processing fees are going up (the bad news), but premium processing will be available for more types of cases (the good news) according to changes included in the recently passed Continuing Resolution (CR) that will fund the government until December 11, 2020. The changes are meant to provide additional funding to USCIS to bolster its operations and improve adjudication times and customer service.

The premium processing fee for cases that are currently eligible for the service will increase from $1,440 to $2,500 — except for H-2B and R (religious worker) petitions, which are set at $1,500.

The new benefit types that will be able to take advantage of premium processing include those listed below. The fees have a “ceiling” amount and have not yet been set. Further, each type of case will have different processing times. Before premium processing for new benefit types go into effect, USCIS must issue regulations setting out the specific fees and the specific adjudication times.

  • EB-1 petitions for multinational executives and managers and EB-2 petitions for those seeking national interest waivers
    • Fee ceiling of $2,500
    • Processing time must be fewer than 45 days
  • Applications to change nonimmigrant status to F, J, or M
    • Fee ceiling of $1,750
    • Processing time must be fewer than 30 days
  • Applications to change or extend status as the dependent of an E, H, L, O, P, or R visa holder
    • Fee ceiling of $1,750
    • Processing time must be fewer than 30 days
  • Applications for employment authorization
    • Fee ceiling of $1,500
    • Processing time must be fewer than 30 days

USCIS is to provide further information before the new fees are implemented. If you have any questions about these upcoming changes, please reach out to your Jackson Lewis attorney. We will provide updates as they become available.

Judge Jeffrey S. White has granted the plaintiffs’ request for preliminary injunction preventing the continued enforcement of the Presidential Proclamation suspending the entry of certain individuals in H, L, and J status (Nonimmigrant Ban) in National Association of Manufacturers et al. v. Department of Homeland Security et al.

This ban has been creating uncertainty for employers and their intra-company transferee employees, high-skilled workers, seasonal laborers, cultural exchange visitors, and dependents who have been stuck abroad since June. The injunction applies solely to the named plaintiffs and their members: the National Association of Manufacturers, the Chamber of Commerce of the United States, the National Retail Federation, Technet and Intrax, Inc. According to the court, the members of these associations include hundreds of thousands of American businesses of all sizes and across all economic sectors.

Judge White determined that the Nonimmigrant Ban likely exceeded the authority of the Executive Branch. Although the U.S. Supreme Court has held that the President has broad authority to prevent the entry of foreign nationals when foreign policy is involved (as in the Travel Ban 3.0 case, Judge White stated that because the Nonimmigrant Ban is based purely on domestic economic policy, the President’s power is not unbridled. In this situation, the President cannot nullify the carefully balanced statutory framework passed by Congress regarding nonimmigrant visas. Judge White was also troubled by the fact that nothing in the record showed there was an evaluation of the effect this ban would have on the national economy. Rather, according to Judge White, the evidence indicated the Nonimmigrant Ban disregarded economic reality.

In balancing the equities, Judge White found an injunction was justified in part because of the injuries suffered by the plaintiffs, including “disruption of their operations, interference with existing employees, the closing of open positions, furlough or lay-offs of employees, substantial pay cuts, threatened loss of prospective customers, shutting down of entire programs, inability to make capital investments and the likelihood that some businesses or cultural programs will have to cease operations altogether.”

Judge White is the same judge who had earlier stopped the USCIS’ fee rule from going into effect.

We await a response from the Administration. Jackson Lewis attorneys are available to assist you in determining how this injunction might affect your employees or change your employment strategies.

The entry period for the 2022 Diversity Immigrant Visa (DV) Program will open on Wednesday, October 7, 2020 at noon, Eastern Daylight Time (EDT) and will close at noon EDT on Tuesday, November 10, 2022.  There is no cost to register.

Individuals born in the following countries are not eligible to apply because more than 50,000 natives of those countries have immigrated to the United States in the past five years: Bangladesh, Brazil, Canada, China (including Hong Kong SAR), Colombia, Dominican Republic, El Salvador, Guatemala, Haiti, Honduras, India, Jamaica, Mexico, Nigeria, Pakistan, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.  Individuals born in Macau SAR and Taiwan are eligible.  It is notable that last year individuals born in Hong Kong SAR were also eligible, but this year, they are not.

Although there is no cost to register, individuals may not submit more than one application.  Doing so will lead to disqualification.  Eligibility requirements are set out on the Diversity Lottery website.  The Department of State (DOS) recommends that applicants apply early and not wait until the last week when heavy demand could lead to website delays.  Applicants must apply online.  No late or paper entries will be accepted.

The DV Program is continuing despite the Administration’s long-stated intention to eliminate it and this year’s Presidential Proclamation that made it impossible for all of the 2020 DV Program winners to apply for immigrant visas.  Those DV Program lottery winners sued the Administration and gained some relief.  They recently asked Judge Amit P. Mehta, the presiding federal judge in the District of Columbia, to preserve 30,000 visas for 2020 DV applicants beyond the September 30, 2020 deadline.  Judge Mehta did so but lowered the figure to 9,095 based upon his estimate of the number of visas DOS reasonably could have processed during the six months in which it illegally refused to process DV Program applications.  With the additional 9,095 visas, the total number issued for the 2020 Program would be about 24,000 – still far short of the close to 50,000 usually issued.

If you have questions about the DV Program 2022 process, Jackson Lewis attorneys are available to assist.