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Articles Posted in Professionals

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The nation awoke with a new President of the United States, and although President Joe Biden has been in office for less than one day, his administration is already planning sweeping immigration reforms and policy changes that will unfold throughout the coming months.

This is just the start of President Biden’s plan to reverse the numerous damaging policies and executive orders passed by the Trump administration during the past four years.

This morning, the White House issued a press release outlining President Biden’s commitment to modernize the U.S. immigration system by way of a legislative bill that will be introduced before Congress in a matter of days.

The new bill, the U.S. Citizenship Act of 2021, proposes to overhaul the current immigration system to more effectively manage and secure our country’s border.

According to the Biden administration, the purpose of the bill is to “restore humanity and American values to our immigration system….” providing “hardworking people who enrich our communities every day and who have lived here for years, in some cases for decades, an opportunity to earn citizenship.”

The bill will prioritize family reunification, address root causes of mass migration from Central America, and among other things ensure that the United States remains a refuge for those fleeing persecution.

Most importantly is the bill’s commitment to create a path to citizenship for eligible undocumented immigrants, including Dreamers and essential workers who have been on the frontline of the COVID-19 pandemic.

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Welcome back to Visalawyerblog! In today’s post, we discuss a newly released final rule announced by the United States Citizenship and Immigration Services (USCIS) on January 7, 2021.

The new rule entitled “Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject H-1B Petitions,” will modify the H-1B cap selection process, amend current lottery procedures, and prioritize wages to ensure H-1B visas are awarded only to the most highly skilled foreign workers according to a new wage level selection process.

According to USCIS this new rule will only affect H-1B cap-subject petitions. It will be enforced against both the H-1B regular cap and the H-1B advanced degree exemption beginning March 9, 2021 (its effective date).

The final rule is scheduled to be published on January 8, 2021, however an advance copy has already been posted in the Federal Register for review.

Click here to view the advance copy.


When does the final rule become effective?


The final rule will become effective 60 days after its date of publication in the Federal Register (falling on March 9, 2021).


What are some of the highlights of this new rule?


The USCIS final rule creates a wage-based selection process for H-1B registrations, instead of a randomized computer generated process which is currently in place.


Ranking by Wage Level


DHS will amend regulations governing the process by which USCIS selects H-1B registrations for the filing of H-1B cap-subject petitions by generally first selecting registrations based on the highest Occupational Employment Statistics (OES) prevailing wage level indicated on the petition, where the proffered wage equals or exceeds the relevant Standard Occupational Classification (SOC) code and area(s) of intended employment, beginning with OES wage level IV and proceeding in descending order with OES wage levels III, II, and I.

The proffered wage is the wage that the employer intends to pay the beneficiary.

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A brand-new bill called the H-1B and L-1 Visa Reform Act of 2020 (S. 3770) sponsored by Republican Senator Chuck Grassley has recently surfaced. As you might have already guessed, the bill seeks to make changes to the current H-1B and L visa programs to reduce fraud and abuse within the H-1B and L visa programs, provide protections for American workers, and enforce stricter requirements for the recruitment of foreign workers. The H-1B visa program is aggressively targeted in this new piece of legislation.


Proposed Changes to the H-1B visa program


First, as it relates to the H-1B visa worker program, the bill proposes changes to existing wage requirements.

The law would require employers to pay the highest wage from three categories:

1) the locally determined prevailing wage level for the occupational classification in the area of employment

2) the median average wage for all workers in the occupational classification in the area of employment; or

3) the median wage for skill level 2 in the occupational classification found in the most recent OES survey.

Second, the bill would make changes to current law and require U.S. employers seeking to hire H-1B workers to publish job postings on a website established by the Department of Labor. After filing the labor condition application, the employer would be required to post the job on the website for at least 30 calendar days. The job posting would have to include a detailed description of the position, including the wages and other terms and conditions of employment, minimum education, training, experience, and other requirements for the position, as well as the process for applying for the position.

Third, all H-1B employers would be required to prove that they have tried to recruit American workers for jobs offered to H-1B workers. Under current law, only H-1B dependent employers (those with more than 50 full time employees of which at least 15% are H-1B employees) are required to recruit American workers for H-1B positions. This would be a drastic change in the law creating additional burdens for U.S. employers seeking to hire foreign workers with specialized skills.

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The House of Representatives has introduced a new bill called the HEROES Act, (Health and Economic Recovery Omnibus Emergency Solutions Act), that provides short term financial relief during this health crisis. In this post, we discuss who would be covered under the HEROES Act and what type of relief would be provided by the Act.

To become law, the HEROES Act will need to be approved by the Senate and signed by the President. The President has openly voiced his opposition for the bill because the bill authorizes federal funds for undocumented immigrants. The bill will likely receive push back in the Republican controlled Senate or at the very least be subject to significant changes. Nonetheless if the bill fails, it will at least provide a foundation upon which Congress can reach a compromise.


What is it?


The HEROES Act is a $3 trillion bill that would provide stimulus checks to individuals who did not previously qualify for stimulus checks under the CARES Act (Coronavirus Aid, Relief, and Economic Security), such as undocumented immigrants.


Relief for Undocumented Individuals


The HEROES Act would provide temporary relief from deportation for undocumented immigrants working in essential fields such as health care workers and allow them to apply for employment authorization throughout the period of the pandemic. In addition, unlike the CARES Act, undocumented immigrants and their families would be eligible to receive stimulus checks. The HEROES Act would allow direct payments to be issued in the amount of – $1,200 for an individual, $2,400 for joint filers, and $1,200 for up to three dependents. The HEROES Act would also authorize undocumented immigrants to be eligible for the first round of stimulus checks sent out in April. The Act also proposes additional health care benefits for immigrants who are eligible for Medicaid and would require immigration authorities to release people from immigration detention where possible.


Low-Risk Detainees


The HEROES Act would require Immigration and Customs Enforcement (ICE) to evaluate the files of detained immigrants and release those who are not subject to mandatory detention, and those who do not pose a risk to national security. In the alternative the HEROES Act would encourage ICE to pursue low-cost alternatives to detention for low-risk immigrants such as requiring detainees to wear ankle bracelet monitors.

The bill would also require detention facilities to provide detainees with free and unlimited soap, as well as phone and video call accessibility to communicate with family and legal representatives.


Expedited Processing for Foreign Medical Workers


The HEROES Act would require expedited visa and green card processing for foreign medical workers seeking to practice medicine, conduct medical research, or pursue education or training to combat COVID-19. Consulates and Embassies worldwide would also be required to prioritize visa interviews for these workers, granting emergency appointments in person or teleconference appointments. Foreign doctors who have completed residency programs in the United States would be eligible to receive permanent residence on an expedited basis. Medical professionals in H-1B status would be eligible to transfer between hospital systems without having to apply for a new visa. In addition, medical students would be eligible to transfer rotations within their host institution and would be compensated for their work throughout the pandemic. In addition, such students could work outside of their approved program so long as their work relates to fighting COVID-19.

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On May 7th just days after the President signed his controversial April 22nd executive order limiting the immigration of certain aliens to the United States for 60 days, Republican senators rallied together to urge the President to pass more immigration restrictions—this time targeting nonimmigrant foreign workers.

Republican Senators Tom Cotton of Arkansas, Ted Cruz of Texas, Chuck Grassley of Iowa, and Josh Hawley of Missouri fired off an impassioned plea to the President asking him to suspend all new guest worker visas for a period of 60 days, and certain categories of new guest worker visas for at least the next year until unemployment levels have returned to normal.

In their letter, the Senators justified their request stating that, “the United States admits more than one million nonimmigrant guest workers every year, and there is no reason to admit most such workers when our unemployment is so high.” The letter continued “given the extreme lack of available jobs for American job-seekers as portions of our economic begin to reopen, it defies common sense to admit additional foreign guest workers to compete for such limited employment.”

The Senators praised the President for passing the April 22nd proclamation but said that more needs to be done because guest worker programs “remain a serious threat to the U.S. labor market’s recovery.”

The Senators said that exceptions to the 60-day suspension should be rare and limited to time-sensitive industries such as agriculture and issued only on a case-by-case basis when the employer can demonstrate that they have been unable to find Americans to take the jobs.

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We are pleased to report the introduction of a brand-new Senate bill called the Healthcare Workforce Resilience Act, sponsored by Senators David Perdue, Todd Young, Dick Durbin, and Chris Coons. The purpose of the bill is to increase the number of health care workers available to meet the demand of the COVID 19 pandemic.

If passed, the Healthcare Workforce Resilience Act, would allow nurses and physicians with approved immigrant visas the ability to adjust their status, so that they can help our nation fight the coronavirus and have a durable immigration status.

As you know, there are currently thousands of nurses and doctors stuck overseas waiting in line for green cards to become available, despite a grave need for their services during this public health crisis. What’s worse is that many of these workers already have approved immigrant petitions but are prevented from serving our communities due to the long visa backlogs.

The bill would authorize the U.S. Citizenship and Immigration Services (USCIS) to “recapture” up to 25,000 immigrant visas for nurses and 15,000 immigrant visas for physicians. USCIS would also recapture immigrant visas for the families of these medical professionals.

These recaptured visas would be drawn from the pool of unused employment-based visas that Congress has previously authorized. These visas would be issued in order of priority date and would not be subject to the country caps. To facilitate timely action, premium processing would be applied to qualifying petitions and applications. Furthermore, the bill would direct the Department of Homeland Security and Department of State to prioritize visa appointments for fully qualified nurses and physicians to enter the United States as fast as possible.

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Welcome back to Visalawyerblog! In this post, we bring you the latest immigration news for the week.

USCIS Temporarily Closing Offices to the Public March 18-April 1 to Reduce Spread of COVID 19 

In response to the widespread COVID 19 pandemic, the United States Citizenship and Immigration Services (USCIS) has announced that effective March 18, 2020 the agency will suspend in-person services at its field offices, asylum offices, and Application Support Centers (ASC) nationwide in an effort to help slow the spread of the Coronavirus.

USCIS plans to suspend in-person services until at least April 1st.

What if I have a scheduled appointment or naturalization ceremony?

USCIS has stated that all applicants and petitioners with scheduled appointments and naturalization ceremonies impacted by this closure will receive notices in the mail.

In addition, USCIS asylum offices will send interview cancellation notices and automatically reschedule asylum interviews. When an interview is rescheduled, asylum applicants will receive a new interview notice with the new time, date and location of the interview.

When USCIS resumes normal operations, USCIS will automatically reschedule ASC appointments impacted by the office closure. Impacted applicants and petitioners will receive a new appointment letter in the mail.

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Great news for FY 2021 H-1B registrants! USCIS has published step-by-step video instructions showing you how you can submit an electronic registration on the USCIS website without the use of an attorney or representative. It is not too late to register. The registration period closes noon ET on March 20, 2020.

USCIS Adds FAQs to Website

USCIS has also included a helpful and detailed FAQ section about the H-1B electronic registration process on its website addressing various topics regarding the H-1B registration process and filing process itself.

We have included these FAQs in this post for your convenience. Questions marked in red are those that we consider to be of most interest to petitioners.

For further information about the H-1B electronic registration process please click here.

Q: What happens if the prospective beneficiary does not have a last name? What do you enter into the system?

  • A: If there is only one name for a beneficiary, it should be entered as the last name. The first and middle name fields will have check boxes that indicate “Beneficiary does not have a first name” or “Beneficiary does not have a middle name.” These boxes should be checked in these instances. Do not enter placeholders, such as “FNU”, “LNU”, “Unknown”, or “No Name Given.

Q: Is there an appeal process for registrations determined to be invalid duplicates?

  • A: Registrations that are determined to be duplicates will be invalid. A registrant who submits duplicate registrations will not be able to appeal the invalidation.

Q: If you are registering for the master’s cap based on the expectation that the beneficiary will earn a qualifying advanced degree, and you are actually selected under the master’s cap, but, the beneficiary does not obtain their qualifying advanced degree, is there a risk that the cap-subject H-1B petition for that beneficiary will be denied?

  • A: If a registration is submitted requesting consideration under the INA 214(g)(5)(C) advanced degree exemption because the beneficiary has earned, or will earn prior to the filing of the petition, a master’s or higher degree from a U.S. institution of higher education, and the registration is selected under the advanced degree exemption, the beneficiary must be eligible for the advanced degree exemption at the time of filing the I-129 petition. If the beneficiary is selected under the advance degree cap and has not earned a qualifying master’s or higher degree from a U.S. institution of higher education at the time the petition is filed, the petition will be denied or rejected.

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H-1B season has officially kicked off!

The new mandatory H-1B electronic registration system for fiscal year 2021 opened yesterday at noon ET on March 1, 2020 and will remain open until noon ET on March 20, 2020.

In order to have a chance of being selected, from now on all prospective petitioners and their authorized representatives seeking to file H-1B cap-subject petitions for FY 2021, including for beneficiaries eligible for the advanced degree exemption, must first register during the registration period (March 1, 2020 to March 20, 2020) and pay the associated $10 registration fee for each beneficiary.

Only petitioners with a selected registration may participate in the H-1B filing process.

Registering is Easy

Petitioners and their authorized representatives must create a myUSCIS online account and submit registrations for each beneficiary via their online account during the registration period.

Per USCIS:

Prospective H-1B cap-subject petitioners or their representatives are required to use a myUSCIS online account to: 1) register each beneficiary electronically for the selection process and 2) pay the associated $10 H-1B registration fee for each registration submitted on behalf of each beneficiary. Prospective petitioners or their representatives will be able to submit registrations for multiple beneficiaries in a single online session. Through the account, they will be able to prepare, edit and store draft registrations prior to final payment and submission of each registration.

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Are you ready for the upcoming H1B season for fiscal year 2021?

With the registration period fast approaching, we want to make sure you know everything there is to know about the new mandatory H-1B electronic registration process for fiscal year 2021 (FY 2021).

The following FAQ provides the most up to date information regarding the mandatory electronic registration requirement.

 

H-1B Registration Process Timeline

Feb. 24: Prospective petitioners may begin creating H-1B registrant accounts (account creation will remain open throughout the entire registration period). Representatives may create an account at any time.

March 1: H-1B registration period opens at noon ET.

March 20: H-1B registration period closes at noon ET.

March 31: Date by which USCIS intends to notify selected registrants.

April 1: The earliest date that FY 2021 H-1B cap-subject petitions may be filed.

FAQs

Q: What is the electronic registration requirement?

A: In order to participate in the upcoming H-1B lottery, prospective petitioners seeking to file H-1B cap-subject petitions for FY 2021, including for beneficiaries eligible for the advanced degree exemption, must first electronically register and pay the associated $10 H-1B registration fee for each beneficiary.

Only those petitioners who have submitted an electronic registration and have received a “Selected” registration notification may properly file an H-1B cap-subject petition for FY 2021.

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