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On March 1, 2021, USCIS will be returning to the 2008 version of the naturalization civics test. This change is a response to President Joe Biden’s Executive Order, “Restoring Faith in Our Legal Immigration System,” that directed a review of the naturalization process to eliminate barriers to the process. Individuals who file naturalization applications with receipt dates on or after March 1, 2021, will take the “old” 2008 version of the test.

The Trump administration retired the 2008 version of the test and introduced a new version that became effective on December 1, 2020. That test introduced new questions and restructured others.

Those who filed their applications on or after December 1, 2020 (when the Trump administration test was in effect), but before March 1, 2021 (when the 2008 version of test becomes effective again) with an interview scheduled before April 19, 2021, will have the choice of taking either the 2008 test or the 2020 test. If the interview is scheduled on or after April 19, 2021, they will take the 2008 test. Those who take the 2020 test will have to answer 12 out of 20 questions correctly to pass. Those who take the 2008 test will have to answer 6 out of 10 questions correctly to pass. Each test has its own set of study questions – 128 for the 2020 version and 100 for the 2008 version.

The relevant study materials for both tests are available on the USCIS Citizenship Center website.

Jackson Lewis attorneys are available to assist you with any questions regarding the naturalization process, including the required civics and English language tests.

With the H-1B cap season about to begin, there is good news for computer programmers and those who employ them. USCIS announced the immediate rescission of a 2017 guidance memo that had raised questions about whether computer programmers qualified for H-1B specialty occupation visas. The 2017 guidance, issued in the wake of the Buy American, Hire American Executive Order, led to a slew of Requests for Evidence (RFEs) and denials.

USCIS’s rescission of the 2017 guidance follows a December 2020 decision of the Ninth Circuit of Appeals in Innova Solutions v. Baran. In Innova Solutions, the Ninth Circuit reversed the District Court decision and concluded that USCIS’s denial of an H-1B petition for a computer programmer was arbitrary and capricious. The court stated that there was “no daylight” between the OOH’s description of the degree requirement for a computer programmer position (“most . . . have a bachelor’s degree in computer science or a related subject”) and the statutory requirement (“a baccalaureate or higher degree . . . is normally the minimum requirement for entry”).

Because the 2017 guidance resulted from then-President Donald Trump’s Buy American, Hire American Executive Order, it is also possible that its rescission is related to President Joe Biden’s subsequent rescission of that Order. Since numerous limitations on legal immigration resulted from Buy American, Hire American, it is conceivable that the rescission of the 2017 guidance is a harbinger of other changes to come. Indeed, Biden has set up a task force to conduct a top-to-bottom review of recent changes that have created barriers to legal immigration, including employment-based immigration.

If you have any questions about how computer programmers in your organization may be affected by the recent guidance, please reach out to the Jackson Lewis attorney with whom you regularly work.

Apparently undeterred by prior litigation striking it down, the Department of Labor (DOL) has published another rule in the Federal Register raising minimum wages for high-skilled workers. The “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States” Rule (Wage Protection Rule) will go into effect on March 15, 2021 and will start to affect H-1B, H-1B1, and E-3 work visa cases, as well as PERM filings in July 2021.

Employers sponsoring individuals in these types of cases must affirm that they will pay the appropriate prevailing wage as determined by DOL. There are four DOL wage levels. The minimum wages for each level are based on the DOL’s calculation of the local median salary for a specific position. In the October 8, 2020, iteration of the Wage Protection Rule, Level I was changed from the 17th Percentile to 45th Percentile. Level II moved from the 34th Percentile to the 62nd. Level III went from the 50th Percentile to the 72nd. Finally, Level IV moved from the 67th Percentile to the 95th Percentile. In the new Wage Protection Rule, these have been adjusted downward, somewhat.

This time, Level I is set at the 35th Percentile, Level II at the 53rd, Level III at the 72nd, and Level IV at the 90th Percentile. In other words, Level I and Level II have moved up a step: Level I is now the equivalent of Level II and Level II is the equivalent of Level III. DOL statistics for H-1B cases show that, historically, 31% of the selected cases filed in the annual “H-1B Lottery” were at Level I, and 53% were Level II. In general, 60% of  H-1B and E-3 cases have been at Level I and Level II. What this means is that once the new wage structure goes into effect, employers will find it more difficult to hire entry level workers (those at Levels I and II) who currently constitute approximately 84% of all selected H-1B lottery cases and approximately 60% of  H-1B and E-3 petitions.

With the new rule, DOL is attempting to address not only issues that were raised by opponents regarding the wage levels themselves, but also the transition to the new wages. No longer is the DOL trying to put the new rule in place immediately as it did when the original rule was published in the Federal Register. Instead, the wage increases will be phased in over a period beginning on July 1, 2021, with most beneficiaries not becoming fully subject to the new wages until July 1, 2022. In addition, DOL is adopting a longer, three-year transition period for those who are eligible to extend their H-1B status beyond the usual 6-year limit due to a pending green card process. Individuals eligible to extend their H-1Bs beyond the usual 6-year limit as of October 8, 2020, will not become fully subject to the new wages until July 2024.

The incoming Biden Administration plans to issue an Executive Order to “halt or delay” any Trump Administration rules that have not gone into effect prior to inauguration day. This DOL rule likely will fall into that category. We will continue to follow the progress of this rule. If you have any questions about its application, Jackson Lewis attorneys are available to advise you.