In this Forbes article, Stuart Anderson provides a good summary of the USCIS and USDOL rules that will change the H-1B visa program by substantially increasing the prevailing wages for H-1B occupations and redefine “specialty occupation.”
USCIS Proposes Major Changes to the H-1B Program
On October 6, 2020, USCIS will be providing an advance copy of a regulation that will significantly change the definition of “Specialty Occupation” for H-1B visa purposes. The rule will narrow the definition of “specialty occupation;” require U.S. companies to “make real offers to ‘real’ employees” by closing loopholes and preventing the displacement of U.S. workers; and enhance DHS enforcement mechanisms. The rule will be published in the Federal Register on October 8, 2020 and goes into effect 60 days after publication (December 7, 2020).
https://public-inspection.federalregister.gov/2020-22347.pdf
The USDOL Increases Prevailing Wages
On October 6, 2020, the U.S. Department of Labor published an advance copy of an interim final rule that will be published in the Federal Register on October 8, 2020 and go into effect upon publication. The rule increases the prevailing wage at each wage level across the board for all occupations for both non-immigrant visa petitions that require a prevailing wage and PERM labor certification applications.
Updates on NIV Entry Ban
On October 9, 2020, the U.S. Department of State provided further guidance on the federal district court injunction, stating that any J-1, H-1B, H-2B, or L-1 applicant who is either sponsored (J-1 visa holders) by, petitioned by, or whose petitioner is a member of, one of the plaintiffs in the case is no longer subject to Presidential Proclamation 10052. The plaintiffs in the case are the National Association of Manufacturers, the U.S. Chamber of Commerce, the National Retail Federation, TechNet, and Intrax, Inc.
On October 5, 2020, the U.S. Department of State (USDOS) announced that it would no longer enforce Presidential Proclamation 10052 which bars certain non-immigrant visa (NIV) holders (certain H, L, J visa holders) from entering the U.S. until the beginning of next year when scheduling emergency appointments. The USDOS stated that emergency/expedited appointments at the U.S. Consular Offices can proceed without a National Interest Exemption (NIE) for foreign nationals subject to this entry ban. Please note that foreign nationals may still be subject to other entry bans that will still require an NIE approval prior to entering the United States. Stay tuned for further updates on this important federal court decision.
Non-immigrant Visa Entry Ban Enjoined, For Some!
On October 1, 2020, the U.S. District Court for the Northern District of California issued a preliminary injunction against the Department of Homeland Security and the U.S. Department of State’s implementation of Presidential Proclamation 10052. The injunction stops the agencies from barring certain non-immigrant visa holders (H-1B, H-2B, certain J-1 visa holders, L-1 visa holders) from entering the U.S. and orders these agencies to stop delaying the processing of these non-immigrant visas applications at the U.S. Consular Offices abroad. Unfortunately, the court limited the scope of the injunctive relief to the plaintiffs in the case (the U.S. Chamber of Commerce and a coalition of technology giants such as Apple and Google), thus the injunction does not cover everyone. We are awaiting guidance from the Department of Homeland Security and the U.S. Department of State on how they will proceed given the order.
USCIS Premium Processing Changes?
On September 30, 2020, the Continuing Appropriations Act of 2021, was signed into law. This law funds the federal government through December 11, 2020. The bill includes provisions to help USCIS’ budget shortfall by increasing existing premium processing fees and expanding premium processing to cover additional types of cases. Even though the bill has been passed, USCIS will need to implement the new law before any changes to premium processing go into effect. Thus, at this time, there have not yet been any changes to USCIS’ premium processing service. Stay tuned…..there will be more to come!
Upcoming Immigration Filing Fees Increase Blocked
The large increases to immigration filing fees, scheduled to go into effect on Oct. 2nd, 2020, have been blocked by a federal judge in California. Attorneys at Curray York & Associates will review the Court’s Order and prepare an update, but in the mean time, immigrants scrambling to file before the Oct. 2nd increase have been given a reprieve.
A True October Surprise – U.S. Immigrant Visas Available
The USDOS announced significant advancement in the employment and family-based preference categories through the rest of 2020 and into 2021!
Visit the Department of State website for the October Visa Bulletin and updated visa availability dates.
DHS Public Charge Updates
Earlier this year, the Department of Homeland Security’s (DHS) rule on public charge inadmissibility went into effect, requiring the use of Form I-944 Declaration of Self-Sufficiency for adjustment of status applicants in deciding whether the applicant is inadmissible based on public charge grounds. Subsequently, a U.S. District Court imposed a nationwide injunction halting implementation of the public charge rule during the COVID-19 national health emergency. The result of the injunction was that applicants for adjustment of status to permanent residence were not required to submit the Form I-944.
On August 12, 2020, the Second Circuit Court of Appeals limited the scope of the injunction to just three states- New York, Connecticut, and Vermont. This means that the government may resume implementation of the public charge inadmissibility rule everywhere outside of those states, which includes requiring adjustment of status applicants to submit Form I-944. We had been hoping for some clarification from USCIS subsequent to the Court of Appeals’ decision. Unfortunately, clarification has not come and we don’t know if it will.
It is difficult to know how to advise clients when many questions remain. However, we believe the safest approach is for applicants residing in states other than New York, Connecticut, and Vermont to prepare and file the I-944 with adjustment of status applications.
The attorneys at Curray York & Associates will continue to closely monitor the situation and provide updates when possible.
Employment-Based USCIS Filing Fee Changes
Employment-Based USCIS Filing Fees Effective October 2, 2020
| Immigration Form | Current Fee | New Fee Effective 10/02/20 | Difference in Cost | Percent Change |
| I-129H1, Petition for Nonimmigrant Worker: H-1 Classification (H-1B, H-1B1) | $460 | $555 | +$95 | +21 |
| I-129L, Petition for Nonimmigrant Worker: L Classification (L-1A, L-1B, Blanket L) | $460 | $805 | +$345 | +75 |
| I-129E&TN, Petition for Nonimmigrant Worker: E or TN Classification | $460 | $695 | +$235 | +51 |
| I-129O, Petition for Nonimmigrant Worker: O Classification | $460 | $705 | +$245 | +53 |
| I-539, Application to Extend/Change Nonimmigrant Status (paper filing) | $370 | $400 ($390 for online filing) | +$30 | +8 |
| I-140, Immigrant Petition for Alien Workers | $700 | $555 | -$145 | -21 |
| I-485, Application to Register Permanent Residence or Adjust Status | $1,140 including EAD and AP* (the $85 biometrics fee is currently charged separately) | $1,130 Separate fee for EAD and AP (the biometrics fee is eliminated) | -$10 | -1 |
| I-485*, Application to Register Permanent Residence or Adjust Status for applicant under the age of 14 | $750 | $1,130 | +$380 | +51 |
| I-765, Application for Employment Authorization | $410 | $550 | +$140 | +34 |
| I-765, Application for Employment Authorization (Deferred Action for Childhood Arrivals (DACA)) | $410 | $410 | $0 | 0 |
| I-131, Application for Travel Document | $575 | $590 | +$15 | +3 |
| N-400, Application for Naturalization (paper filing) | $640 | $1,170 ($1160 for online filing) | +$530 | +83 |
*USCIS is decoupling the I-485 application for permanent residence and the related applications for the I-765 employment authorization document and I-131 advanced parole travel documents. Currently, there is a single combined filing fee for all of these to be submitted together and the USCIS does not charge an additional fee for renewals of the I-765 and I-131 as long as the I-485 is pending. Effective October 2, 2020, there will be separate government filing fees for all I-765 and I-131 applications.