Health Care Blog

TheDepartment of State has just issued the March 2020 Visa Bulletin. This is the sixth VisaBulletin of Fiscal Year 2021. This blog post analyzes this month’s VisaBulletin.

Visa Bulletin

Table A: Final Action Dates –Applications with these dates may be approved for their Green Card (PermanentResidency card) or Immigrant Visa appointment.

Table B: Dates of Filing

The USCIS will be using the TableA: Final Action Dates chart for I-485 employment-based filings. A beneficiarymust be current on the above Table A chart in order to file their I-485,Adjustment of Status applications.

MU Law Analysis

Both the Philippines andWorldwide (All Other) EB-3 continue to be current. Our opinion remains thatthese categories will stay current for the foreseeable future.

India EB-1 movedahead 7 more months, which is about a year since December. India EB-2 andEB-3 each showed more progress than usual, but the progress is stillunderwhelming.  These slow progressions,along with the large number of India EB-2 and EB-3 filings in October,November, and December, probably means that we should only expect 1-4 weekmovements in India EB-2 or EB-3 for at least the rest of 2021.

China EB-2 and EB-3 againboth moved forward by a few weeks, a trend that should continue. China EB-1 againshowed more progress than expected moving ahead seven months.  This may be because of declining rates ofvisa issuance out of the American posts in China.

MU Law will be hosting a free webinar for our clients and friends on Tuesday, February 16, 2021 at 2PM Eastern (1PM Central). Interested clients and friends can register for our webinar by clicking on the link below.

REGISTER HERE

Join us for this FREE webinar to learn more about:

–      The H-1B CAP timeline for registration submissions

–      The H-1B Wage-Based Lottery Selection Rule now *canceled*

–      Recap of DOL Wage Rule and promo Alternative Wage Surveys

–      The H-1B Rule Requiring End-Clients to file LCAs or H-1Bs now *canceled*

PLEASE JOIN US! 

REGISTER HERE

Join us for this FREE webinar to learn more about:

–     TheH-1B CAP timeline for registration submissions

–     TheH-1B Wage-Based Lottery Selection Rule now *canceled*

–     Recapof DOL Wage Rule and promo Alternative Wage Surveys

–     TheH-1B Rule Requiring End-Clients to file LCAs or H-1Bs now *canceled*

InJanuary 2021, the USCIS issueda final rule that would replace the random H-1B cap lottery with awage-based H-1B selection process. This January 2021 rule was set to go into effecton March 9, 2021 and would apply to the upcoming H-1B cap season (filed inApril 2021 for Fiscal Year 2022). However, the USCIShas delayed implementing this rule until December 31, 2021. This means thatfor the H-1B cap lottery in April 2021, even if there are multiple lotterydrawings, none of the drawings will be done under the wage-based selection process.  All lottery drawings in 2021 will be random.  

Thenew wage-based selection process would select the H-1Bs filed at the highestOES prevailing wage level, starting with Level IV, for the job classificationand location of employment.  If there aremore than 85,000 Level IV H-1B petitions filed, then the USCIS would hold alottery just for the Level IV wage petitions. If there are fewer than 85,000 level IV wage petitions, then the USCIS wouldrun a lottery of the Level III wage petitions for the remaining H-1B spotsavailable. The wage-based selection process then continues for Level II and I,until 85,000 petitions have been selected. 

TheUSCIS announced February 4, 2021 that the USCIS willdelay implementing the wage-based selection process because the USCIS doesnot have adequate time to develop and test the new wage-based selection processfor the 2021 H-1B lottery.  At present, theUSCIS plans to have the rule implemented for the H-1B cap season in April 2022(Fiscal Year 2023).

 President Biden has announced the US Citizenship Act of 2021, an immigration plan that could impact many immigration laws.  At this time, President Biden’s plan is not law, but only a proposal.  Although President Biden has promised many changes to immigration laws, these changes will take time to be implemented. 

Once President Biden’s plan is introduced into Congress, either in the House of Representatives or the Senate, as a bill, the bill must successfully pass three steps before it becomes a law:

1. Pass the House of Representatives and the Senate. The bill must be voted for by a majority of the members of the House of Representatives (the House) and the Senate.

2.Conference Committee. If the House and the Senate pass different versions of the bill, the bill must be amended so that there is only one version of the bill. Once the bill has been amended, both the House and Senate must again pass the bill.

3. Be signed by the President. Once a bill is signed by the President, the bill  becomes a law.

As of today, the US Citizenship Act of 2021 introduced by President Biden is still only a plan and must be introduced to Congress as a bill and successfully pass these three steps before it becomes a law. 

The Department of State has just issued the February2020 Visa Bulletin. This is the fifth VisaBulletin of Fiscal Year 2021. This blog post analyzes this month’s VisaBulletin.

Visa Bulletin

Table A: Final Action Dates — Applications with these dates may beapproved for their Green Card (Permanent Residency card) or Immigrant Visaappointment.

Table B: Dates of Filing

The USCIS will be using the Table A: Final Action Dates chart forI-485 employment-based filings. A beneficiary must be current on the aboveTable A chart in order to file their I-485, Adjustment of Status applications.

MU Law Analysis

Both the Philippines and Worldwide (All Other) EB-3 continueto be current.  Our opinion remains thatthese categories will stay current for the foreseeable future.  This month’s Visa Bulletin included a noteconfirming that these categories will stay current at least through May, whichis the furthest projection that the DOS will make, i.e. 3 months into thefuture.

India EB-1 moved ahead 3.5 more months, after six months in December and fivemonths in January. Unfortunately, India EB-2 and EB-3 each movedahead by only about two weeks.  Theseslow progressions, along with the large number of India EB-2 and EB-3 filingsin October, November, and December, probably means that we should only expect1-4 week movements in India EB-2 or EB-3 for at least the rest of 2021.  This month’s Visa Bulletin included a noteconfirming that the EB-2 and EB-3 categories should move two weeks on averagethrough the May Visa Bulletin.

China EB-2 and EB-3 again both moved forward by a few weeks, a trend that shouldcontinue. China EB-1 showed more progress than expected, perhaps becauseof declining rates of visa issuance out of the American posts in China.  This month’s Visa Bulletin included a notethat says that EB-2 and EB-3 should move 2-3 weeks on average through the MayVisa Bulletin.

Join is for a review of some of the immigration changes that took place in 2020 and a look forward to the changes coming in 2021, specifically for the H-1B cap. Interested clients and friends can register for our webinar by clicking on the link below.

REGISTER HERE

MU Law will be hosting a free webinar for our clients and friends on Tuesday, January 26, 2021 at 2PM Eastern (1PM Central).

Join us for this FREE webinar to learn more about:

• H-1B Cap Basics, Registration Process, and Projections
• NEW RULE: H-1B lottery system, selection by wage
• NEW RULE: DOL Rule Regarding Calculation of Prevailing Wage
• H-1B Specialty Occupation
• H-1B Dependency
• H-1B issues for Staffing Companies and Third-Party Placement
• Third- Party Placement v. In-House work?
• Employer-Employee Relationships
• Cap-Gap for F-1s
• CPT / OPT Maintenance
• Top 10 things H-1B employers can do to stay compliant

PLEASE JOIN US! 

DOL DRAMATICALLY RAISESPREVAILING WAGES

OnJanuary 14, 2021 the US Department of Labor (DOL) published its FinalRuleregarding the calculation of prevailing wages. Readers of our blog will note that the DOL previously issued an InterimRule about calculation of prevailing wages which was struckdown by Federal Judgeslate last year.  The Final Rule publishedon January 14, 2021 is the updated version of the Interim Rule.

Summaryof the Final Rule

The FinalRule will dramatically change the calculation of prevailing wage levelsresulting in significantly higher prevailing wages.  While the new percentiles are lower than the October2020 Interim Rule’s percentiles, the new percentiles arestill considerably higher than the current percentiles. 

TheFinal Rule applies to prevailing wages applicable to applications for H-1Bs,H-1B1s, E-3s, and Green Cards.

TransitionPeriods

TheFinal Rule attempts to provide employers and foreign nationals an opportunityto adapt to the change in calculations.  Forthose who did not have an I-140 approval in hand as of October 8, 2020,the transition will occur over an eighteen-month period:

• StageOne, Present to June 30, 2021: Current Percentiles remain in effect
• StageTwo, July 1, 2021 to June 30, 2022: 90% of the Final Rule percentile
• StageThree, July 1, 2022 and Beyond: 100% of the Final Rule percentile

Forthose who did have an I-140 approval in hand as of October 8, 2020, andso are applying for a post-six year H-1B extension, the transition will occurover an three and a half year period:

• StageOne, Present to June 30, 2021: Current Percentiles remain in effect
• StageTwo, July 1, 2021 to June 30, 2022:85% of the Final Rule percentile
• StageThree, July 1, 2022 and Beyond: 90% of the Final Rule percentile
• StageFour, July 1, 2023 and Beyond: 95% of the Final Rule percentile
• StageFive, July 1, 2024 and Beyond: 100% of the Final Rule percentile

The American Immigration Lawyers’ Association (AILA) reported that President-ElectBiden’s transition team will issue an immediate 60-day delay to theimplementation of this and other last-minute regulations promulgated by theTrump presidency, but how the Biden Administration will move forward remainsunknown.

AlternativeWage Surveys

Alternative Wage Surveysmay be accepted by the DOL if the survey meets specific requirements.  Employers concerned about the Final Rule andits implications for their employees may want to consider using an AlternativeWage Survey in place of the DOL’s wage survey. For more information about which wage surveys may be accepted by theDOL, please contact your MU attorney. 

Join is for a review of some of the immigration changes that tookplace in 2020 and a look forward to the changes coming in 2021, specificallyfor the H-1B cap. Interested clients and friends can register for our webinar by clicking on the link below.

REGISTER HERE

MU Law will be hosting a free webinar for our clients and friendson Tuesday, January 26, 2021 at 2PM Eastern (1PM Central).

Join us for this FREE webinar to learn more about:

• H-1BCap Basics, Registration Process, and Projections
• NEWRULE: H-1B lottery system, selection by wage
• NEWRULE: DOL Rule Regarding Calculation of Prevailing Wage
• H-1BSpecialty Occupation
• H-1BDependency
• H-1Bissues for Staffing Companies and Third-Party Placement
• Third-Party Placement v. In-House work?
• Employer-EmployeeRelationships
• Cap-Gapfor F-1s
• CPT/ OPT Maintenance
• Top10 things H-1B employers can do to stay compliant

PLEASE JOIN US!

USCIS has issued a final rule that willreplace the H-1B cap lottery with a wage-based selection process.  The new process selects the highest OESprevailing wage level, starting with Level IV. If there are more than 85,000 petitions filed with a Level IV wage, thenthe USCIS will hold a lottery just for the Level IV petitions.  If there are fewer than 85,000 that are filedwith a Level IV wage, then the USCIS will take all petitions that are filedwith Level III wage.  The process thencontinues for Level II and I, until the full allotment of 85,000 have beenselected.  USCIS reserves 20,000 of the85,000 H-1B slots for master degreed holders from US universities. 

The rule will take effect in 60 days, in timefor the March 2021 H-1B cap season.  Theincoming Biden could theoretically place the regulation on hold. The rule could also be challenged incourt.   

Because we will not know in advance how manywill be petitioned under Level IV, III, II, or I, it is impossible to know whatwage level will guarantee a chance at an H-1B slot, although a petition filedwith a Level IV wage should have a good chance of success. 

Another complicatingfactor is that it is very difficult to assess how COVID and/or the economy willaffect the volume of H-1B cap petitions that will be filed this year.  The USCIS received over 250,000 H-1B cappetitions in both 2019 and 2020.