Department of Labor Postpones H-1B and PERM Prevailing Wage Plans Indefinitely
The Biden administration has postponed indefinitely its plans to raise the wages of professional foreign workers in the H-1B and employment-based green card categories, while reconfirming intentions to propose reforms to the H-1B visa program by the end of the year. Plans to publish new regulations allowing virtual review of Form I-9 documents and increasing immigration-related filing fees have also been pushed back.
The Department of Labor (DOL) has moved its proposal to raise prevailing wage rates for the H-1B visa and PERM programs to its long-term agenda, historically the first step to a proposal being shelved permanently.
A final rule proposed by the Trump administration raising wages for workers with H-1B visas and employment-based green cards was supposed to take off in November 2022. A federal judge vacated it the previous year. The rule was issued in January 2021 as one of the last regulatory actions of the Trump administration.
The Biden administration showed interest in moving forward with the proposal but has now removed it from the DOL's current regulatory agenda.
SOURCE: Roy Maurer, "DOL Postpones H-1B, PERM Prevailing Wage Plans," SHRM.com, June 22, 2023: https://www.shrm.org/ResourcesAndTools/hr-topics/talent-acquisition/Pages/DOL-Postpones-H1B-PERM-Prevailing-Wage-Plans.aspx.; Stuart Anderson. "DOL Wage Rule For Immigrants and H-1B Visa Holders Could Be History," Forbes, June 26, 2023: https://www.forbes.com/sites/stuartanderson/2023/06/26/dol-wage-rule-for-immigrants-and-h-1b-visa-holders-could-be-history/?sh=694f233d75a9
I-9 Verification Flexibilities Ending Soon
Employers will have an additional 30 days to comply with Form I-9 requirements after COVID-19 flexibilities sunset on July 31, 2023, according to the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE). These flexibilities were first announced in March 2020 due to the COVID-19 pandemic and subsequently extended several times. DHS encourages employers who have been using these temporary flexibilities "to plan ahead to ensure that all required physical inspection of identity and employment eligibility documents is completed" by August 30, 2023.
The flexibilities deferred the requirement that employers review employees' identities and employment authorization documents in the employees' physical presence, instead allowing that to occur remotely, with the expectation that physical inspection would occur within three business days after normal operations resumed. ICE said employers could continue to implement the flexibilities "until affected employees undertake non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier."
Under the flexibilities, employers could examine the employees' documents remotely (e.g., over video link, fax, or email) and enter "COVID-19" as the reason for the physical examination delay in the Section 2 Additional Information field on the Form I-9 when physical examination took place in the future. Once the employees' documents were physically examined, the employer would add "documents physically examined" with the date of examination to the Section 2 Additional Information field on Form I-9, or in Section 3, as appropriate.
SOURCE: "ICE Updates Form I-9 Requirement to Grant Employers More Time to Comply With Requirements," ICE news release (May 4, 2023). https://www.ice.gov/news/releases/ice-updates-form-i-9-requirement-flexibility-grant-employers-more-time-comply
USCIS Provides Guidance on EADs Based on Compelling Circumstances
U.S. Citizenship and Immigration Services (USCIS) has released policy guidance on the eligibility criteria for initial and renewal applications for an Employment Authorization Document (EAD) in compelling circumstances. An applicant must meet the following eligibility requirements to be eligible for an initial EAD based on compelling circumstances:
- The principal applicant is the principal beneficiary of an approved Form I-140, Immigrant Petition for Alien Workers, in either the first, second, or third employment-based preference category;
- The principal applicant is in valid E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status or an authorized grace period when they file the Form I-765, Application for Employment Authorization;
- The principal applicant has not filed an adjustment of status application;
- An immigrant visa is not available to the principal applicant based on the applicant's priority date according to the relevant Final Action Date in the Department of State's Visa Bulletin in effect when they file Form I-765;
- The applicant and dependents provide biometrics as required;
- The applicant and dependents have not been convicted of a felony or two or more misdemeanors; and
- USCIS determines, as a matter of discretion, that the principal applicant demonstrates compelling circumstances that justify the issuance of employment authorization.
The guidance provides a non-exhaustive list of situations that could lead to a finding that compelling circumstances exist, including serious illness and disability, employer dispute or retaliation, other substantial harm to the applicant, or significant disruption to the employer. The guidance also provides details on evidence an applicant could submit to demonstrate one of these compelling circumstances.
Dept. of State: July 2023 Visa Bulletin Shows EB-3 Final Action Data Retrogression for Multiple Countries
The Department of State's Visa Bulletin for July notes that due to high demand, retrogressions have been necessary for the employment-based third preference (EB-3) category for India, Mexico, Philippines, and Rest of World. The Rest of World, Mexico, and Philippines EB-3 final action dates have retrogressed to 01FEB22. EB-3 applicants from India are subject to a final action date of 01JAN09.
Department of State: Nonimmigrant Visa Fee Increases Effective June 17
Effective June 17, 2023, the nonimmigrant visa (NIV) application processing fee for visitor visas for business or tourism (B1/B2s and BCCs), and other non-petition based NIVs such as student and exchange visitor visas (F, M, and J visas) increased from $160 to $185. The fee for certain petition based NIVs for temporary workers (H, L, O, P, Q, and R categories) increased from $190 to $205. The fee for a treaty trader, treaty investor, and treaty applicants in a specialty occupation (nonimmigrant E category) visa increased from $205 to $315. NIV fees paid prior to June 17, 2023, will remain valid through the expiration date of the fee receipt.
This does not change any other fees, including the fee to apply for a waiver of the two-year residency requirement for certain exchange visitors, which remains at $120.
Fee information can be found on the Bureau of Consular Affairs website, https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/fees/fees-visa-services.html, and on the websites of U.S. embassies and consulates.
SOURCE: U.S. Department of State, Bureau of Consular Affairs, June 2, 2023: Nonimmigrant Visa Fee Increases to Take Effect June 17, 2023 (state.gov)
Immigration Agency Report Shows High H-1B Visa Salaries
A government report shows the notion that H-1B visa holders are "cheap labor" is a myth, with the average salary for H-1B professionals in computer-related occupations reaching nearly $130,000 a year. The average annual salary for an H-1B visa holder in computer-related occupations in 2022 was $129,000, according to the Characteristics of H-1B Specialty Occupation Workers, Fiscal Year 2022 Annual Report to Congress published by USCIS. The median salary for H-1B professionals in computer-related occupations was $123,000 in 2022. The median salary for H-1B professionals in computer-related occupations increased by 26% between 2018 and 2022, and the average salary rose by 23%. At the current pace, the average salary for H-1B visa holders in computer-related occupations could reach about $200,000 a year within a decade.
SOURCE: Stuart Anderson, Forbes, June 5, 2023: https://www.forbes.com/sites/stuartanderson/2023/06/05/immigration-agency-report-shows-high-h-1b-visa-salaries/?sh=445fb44511ee
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