H-1B Registration Season Is Coming—Are You Ready?

We are approaching the annual H-1B Registration Period, the short window each fiscal year when employers can initiate employment visa sponsorship for qualifying employees who need it.

About H-1B Sponsorship: This nonimmigrant classification applies to people hired to perform services in a specialty occupation. Only 85,000 new H-1B visas are available each government fiscal year, and demand has been consistently higher than the available visas. Both the sponsored position and the sponsored worker must meet certain requirements to qualify:

• The worker must have at least a U.S. Bachelor’s degree or equivalent in a specific field of specialty, from an institution accredited at the time the degree was conferred on the candidate;

• The offered position must require and use the candidate’s specialty degree and specialized knowledge; and

• The employer must pay at least the government-determined Prevailing Wage commensurate with the position’s education and experience requirements, and the geographic location where the candidate will be employed.

Now is the time to consider H-1B sponsorship for Fiscal Year 2023.

1. The process starts with an electronic registration period in March 2022, during which employers register with US Citizenship & Immigration Services (USCIS) and provide information regarding the foreign national they intend to sponsor.

2. At the close of the registration period, USCIS will conduct a random computer-generated lottery and will notify employers whose registrations are selected.

3. Selected employers are provided a window during which to prepare and file the full-fledged Petition for H-1B Worker with USCIS.

4. If USCIS does not fill all 85,000 H-1B slots during the first round of selection and Petition submissions, USCIS will conduct a second lottery and notify newly selected candidates later in summer 2022. If needed, USCIS may conduct subsequent lotteries.

Contact us now to get a head start on the H-1B Registration process, or to learn more about H-1B sponsorship.

H, L, and J Nonimmigrant Visa Ban Sunsets; What to Expect (April 1, 2021)

Presidential Proclamation 10052 (PP 10052), which suspended entry of nonimmigrants in the H-1B, H-2B, L-1, and certain J-1 categories, and their dependents, has expired as of March 31, 2021. This is welcome news; however, the expiration of PP 10052 will not likely result in immediate processing of nonimmigrant visa applications, given the current state of U.S. consular operations.

The COVID-19 global pandemic continues to impact post operations and with many health-related bans still in place, will likely continue to impact posts’ ability to process cases. Many posts are prioritizing the issuance of immigrant visas, and this is likely to impact the availability of appointments and processing times for nonimmigrant visas.

The nonimmigrant proclamation had been in effect since June 24, 2020, and was initially scheduled to expire on December 31, 2020, but former President Trump extended the ban through March 31, 2021. President Biden revoked a companion Trump-era immigrant visa ban on February 25, 2021, but let the nonimmigrant ban run its course through the end of March.

DOL Announces Additional Delay in Effective Date of Regulation Affecting Wages for H-1B and PERM Workers (Mar. 22, 2021)

The Department of Labor (DOL) issued a Federal Register notice proposing to further delay the effective date of the Final Rule, Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States, for a period of eighteen months or until November 14, 2022. The DOL has also proposed corresponding delays to the rule’s transition dates. The DOL invites public comment on the proposed delay on or before April 21, 2021.

Under the law, an employer must pay an H-1B visa holder the higher of the prevailing wage or actual wage paid to similar U.S. workers, and in the permanent residence context, the employer generally must pay at least the DOL-determined prevailing wage. DOL currently determines the prevailing wage by using data from the government’s Occupational Employment Statistics (OES) wage survey and using a mathematical formula to create four levels of wages for each occupation. The regulation about would change how DOL's National Prevailing Wage Center (NPWC) applies its four wage-level system to generate prevailing wage determinations when Occupational Employment Statistics (OES) data is used as the wage data source. The result of the proposed changes would be significantly higher NPWC prevailing wage determinations impacting both the temporary (e.g., H-1B) and permanent (PERM) programs.

DHS Issues New Regulation Changing the H-1B Lottery Process; Challenges Likely (Jan. 8, 2021)

On Thursday, USCIS announced the final rule that will modify the H-1B cap selection process and amend current lottery procedures, relying on wage levels to select petitions for the temporary employment program. USCIS claims that modifying the H-1B cap selection process will incentivize employers to offer higher salaries, and/or petition for higher-skilled positions. However, the government’s legal basis for making such changes is tenuous, at best.

The final rule will be effective 60 days after its publication in the Federal Register, on March 9, 2021; challenges are expected. Most immediately, the new Biden Administration could delay the rule’s effective date, and pursue the rescission process under the Administrative Procedures Act. In addition, litigation is all but assured, as the rule was issued under the tenure of Chad Wolf, who courts have found is not lawfully exercising the powers of the Secretary of Homeland Security, and because the Department lacks legal authorization to make such changes under the statute.

To implement the rule, USCIS would be required to reprogram the H-1B Registration website that launched in 2020; given the time frame involved this, too, is likely to be a challenge. When the H-1B Registration program was first implemented in 2019, the re-vamped process of conducting the lottery had to be delayed a year while the website issues were worked out.

Goldblum & Pollins will continue to provide updates on the status of the new regulation and its impact on the current year’s cap-subject H-1B selection process.

President Trump Issues Proclamation Suspending Entry of Certain H, J, and L Nonimmigrants through December 2020 (June 22, 2020; updated July 2, 2020)

On June 22, 2020, the president issued a proclamation titled Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak, that will go into effect at 12:01 a.m. EDT on June 24, 2020.

Section 1 of the proclamation extends the effective dates of the President’s April 22 Proclamation titled Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak. This proclamation suspended entry of certain new immigrants who do not already have an approved immigrant visa. It was originally valid for 60 days, until June 22, 2020. The new proclamation extends the period for an additional 4 months, until December 31, 2020.

Section 2 of the proclamation suspends "entry into the United States of any alien seeking entry pursuant to any of the following nonimmigrant visas" until December 31, 2020, subject to certain exceptions:

"an H-1B or H-2B visa, and any alien accompanying or following to join such alien [H-4];"

"a J visa, to the extent the alien is participating in an intern, trainee, teacher, camp counselor, au pair, or summer work travel program, and any alien accompanying or following to join such alien;"

"an L visa, and any alien accompanying or following to join such alien."

Importantly, the entry bar for those in J Exchange Visitor categories does not apply to exchange categories other than those listed. For example, it does not apply to participants in the J professor, research scholar, short-term scholar, college or university student, or ECFMG alien physician categories.

Section 3 of the proclamation establishes that this entry bar applies only to an individual who:

"(i)  is outside the United States on the effective date of this proclamation;

(ii)  does not have a nonimmigrant visa that is valid on the effective date of this proclamation; and

(iii)  does not have an official travel document other than a visa (such as a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid on the effective date of this proclamation or issued on any date thereafter that permits him or her to travel to the United States and seek entry or admission."

An amendment to the proclamation was issued on June 29, attempting to clarify the visa issue and appearing to confirm that visa exempt individuals, such as Canadian citizens, are not covered by the proclamation.

The new section 3 reads:

Sec. 3.  Scope of Suspension and Limitation on Entry.  (a)  The suspension and limitation on entry pursuant to section 2 of this proclamation shall apply only to any alien who:

(i)    is outside the United States on the effective date of this proclamation;

(ii)  does not have a nonimmigrant visa, of any of the classifications specified in section 2 of this proclamation and pursuant to which the alien is seeking entry, that is valid on the effective date of this proclamation; and

(iii)  does not have an official travel document other than a visa (such as a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid on the effective date of this proclamation or issued on any date thereafter that permits him or her to travel to the United States and seek entry or admission.

Despite that Section 3 appears to require both that the person was outside the U.S. on the effective date and lacked a valid H, L or J visa on the effective date in order to be subject to the proclamation, the Department of State has announced its position not to issue any of the impacted visas through December 31, 2020. This means that even if a person was present in the U.S. with a valid visa on June 24, if that person departs the U.S. and requires visa re-stamping, they will be unable to do so during the proclamation’s effectiveness. If you are in the designated H, L, or J statuses you SHOULD NOT TRAVEL ABROAD without first speaking with a qualified immigration attorney.

In addition, the proclamation does not apply to:

"(i)    any lawful permanent resident of the United States;

(ii)   any alien who is the spouse or child, as defined in section 101(b)(1) of the INA (8 U.S.C. 1101(b)(1)), of a United States citizen;

(iii)  any alien seeking to enter the United States to provide temporary labor or services essential to the United States food supply chain; and

(iv)   any alien whose entry would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees."

The “national interest waivers” in Section 3(b)(iv) are intended to include those that:

• are critical to the defense, law enforcement, diplomacy, or national security of the United States;

• are involved with the provision of medical care to individuals who have contracted COVID-19 and are currently hospitalized;

• are involved with the provision of medical research at United States facilities to help the United States combat COVID-19; or

• are necessary to facilitate the immediate and continued economic recovery of the United States.

Additional Measures Called for by the Proclamation

Section 4 directs that, "Within 30 days of June 24, 2020, and every 60 days thereafter while this proclamation is in effect, the Secretary of Homeland Security shall, in consultation with the Secretary of State and the Secretary of Labor, recommend any modifications as may be necessary.”

Section 5 calls on the agencies to take substantial "additional measures," such as:

• Directing the U.S. Department of Labor and U.S. Department of Homeland Security to ensure compliance with the permanent labor certification (PERM) and temporary labor condition application (LCA) statutory rules that are designed to protect U.S. workers;

• Directing DHS and U.S. Department of State to ensure compliance with biographic and biometric data collection requirements;

• Directing DHS to "take appropriate and necessary steps, consistent with applicable law, to prevent certain aliens who have final orders of removal; who are inadmissible or deportable from the United States; or who have been arrested for, charged with, or convicted of a criminal offense in the United States, from obtaining eligibility to work in the United States."

• Directing DHS to "consider promulgating regulations or take other appropriate action regarding the efficient allocation of visas pursuant to section 214(g)(3) of the INA (8 U.S.C. 1184(g)(3)) and ensuring that the presence in the United States of H-1B nonimmigrants does not disadvantage United States workers."