Health Care Blog

Effective October 8, 2020, theDepartment of Labor (DOL) issued a new ruledramatically increasing prevailing wages for H-1B, EB-2, and EB-3 workers.  The new rule changes the computation of thefour levels of wages when the DOL is using the Occupational Employment Statistics(OES).  For more detail about thesechanges, you can read our previousblog post on the rule.

A prevailing wage determination can onlybe issued by the DOL. The prevailing wage is based on the job duties, jobrequirements, and job location as provided by the employer on a prevailing wagerequest.  The prevailing wage for anH-1B, EB-2, or EB-3 worker, is the wage the foreign national is required to bepaid by his or her employer upon approval of the H-1B or green card.

Frequently, employers and foreignnationals review the Foreign Labor Certification (FLC) Data Center website whichpublishes the OES wages and refer to the OES wages as the “prevailing wages.” TheFLC Data Center wages are not prevailing wages. A prevailing wage determination(PWD) can only be issued by the DOL.

The OES is only one wage library theDOL can consult when issuing a PWD.  TheDOL can also review private wage surveys, if the survey is provided by theemployer at the time the wage request is made. In order for a private wage survey to be accepted by the DOL, it mustmeet certain, specific requirements.  Formore information about those requirements and which surveys might apply to yourcases, please contact MU.

The new DOL wage rule only applies towage determinations issued by the DOL or LCAs certified by the DOL on or afterOctober 8, 2020.  Approved H-1Bs orI-140s are not required to be updated with the new wage calculations.  In addition, wage determinations which havebeen issued by the DOL and are valid through 2021 are not required to beupdated.

Finally, there are severallaw suits which have already been filed challenging the new rule.  Please continue to read our blog for regularupdates on these pending law suits and the wage rule. 

MU Law will be hosting a free webinar for our clients and friends on Monday, October 12, 2020 at 2PM Eastern (1PM Central).  Interested clients and friends can register for our webinar by clicking on the link below.

 REGISTER HERE

Are you feeling dizzy from all the changes in immigration lately?  Join us for this FREE webinar to learn more about:

• Furloughs at USCIS
• Recap of the Presidential Proclamations from April and June 2020
• 221Gs from the US Embassy in Manila
• The Public Charge Rule
• October Visa Bulletin
• EB2 to EB3 Downgrading options for Indian and Chinese nationals
• Detailed Risk Analysis of I-140 Amendments
• USCIS Fee Increases
• New Department of Labor rule regarding prevailing wage calculations
• New USCIS rule regarding qualification for H-1B

MU Law will be hosting a free webinar for our clients and friends on Monday, October 12, 2020 at 2PM Eastern (1PM Central).  Interested clients and friends can register for our webinar by clicking on the link below.

 REGISTER HERE

Are you feeling dizzy from all the changes in immigration lately?  Join us for this FREE webinar to learn more about:

• Furloughs at USCIS
• Recap of the Presidential Proclamations from April and June 2020
• 221Gs from the US Embassy in Manila
• The Public Charge Rule
• October Visa Bulletin
• EB2 to EB3 Downgrading options for Indian and Chinese nationals
• Detailed Risk Analysis of I-140 Amendments
• USCIS Fee Increases
• New Department of Labor rule regarding prevailing wage calculations
• New USCIS rule regarding qualification for H-1B

MU Law will be hosting a free webinar for our clients and friendson Monday, October 12, 2020 at 2PM Eastern (1PM Central).  Interested clients and friends can registerfor our webinar by clicking on the link below.

 REGISTER HERE

Are you feeling dizzy from all the changes in immigrationlately?  Join us for this FREEwebinar to learn more about:

• Furloughs at USCIS
• Recap of the Presidential Proclamations from April and June 2020
• 221Gs from the US Embassy in Manila
• The Public Charge Rule
• October Visa Bulletin
• EB2 to EB3 Downgrading options for Indian and Chinese nationals
• Detailed Risk Analysis of I-140 Amendments
• USCIS Fee Increases
• New Department of Labor rule regarding prevailing wagecalculations
• New USCIS rule regarding qualification for H-1B

Followingthe USCIS’sannouncement in late September that it will accept thefavorable October FY 2021 visa bulletin filing dates, many candidates have seena significant improvement in their chances to file a long-awaited adjustment ofstatus (I-485) application. 

Inthe October visa bulletin, all categories besides India and China are current.Notably, China’s and India’s EB3 categories give eligibility to file topriority dates that are morerecent than those of the EB2 category. 

Thereare three options for those looking to downgrade their I-140:

   1. Amendingthe existing I-140: An I-140 amendment is a request that theUSCIS reopen the EB2 case and convert the EB2 I-140 to an EB3 I-140.  The USCIS will again review the EB2 I-140 and,if the amendment is approved, convert the EB2 to EB3.  If the EB3 dates later retrogress, a newI-140 will have to be filed to obtain an EB2 priority date.

2. Filinga new I-140: A new I-140 includes a new wage request, anew Notice of Filing posting, a new labor market test and a new LaborCertification (when required).  A newI-140 may be required if the employee has moved to a new worksite, newposition, or new employer and cannot return to the worksite, position, oremployer listed on the approved I-140. Once the new I-140 is approved, if the employee’s priority date iscurrent, he/she can file an I-485. 

3. Filinga second I-140: A second I-140 can be filed in PERM case (one that requires a labormarket test) with an expired Labor Certification.  If an I-140 is filed during the six monthvalidity period of a Labor Certification, the Labor Certification becomes validindefinitely and can be re-used in subsequent I-140s.  A note that the USCIS will only accept anexpired Labor Certification if it was certified by the Department of Labor, sothis option is not available in Schedule A cases for PTs and RNs. 

Giventhe current “flip-flopped” EB3 vs. EB2 priority dates, below are MU’s“need-to-know” points for Chinese and Indian nationals considering an EB2 toEB3 “downgrade”:

•  Will EB3 filing dates always be morefavorable than EB2 filing dates?

Thevisa bulletin changes every month; there is no guarantee that the visa bulletincategories will remain the same for November or any of the following months.For this reason, it is unclear whether EB2 or EB3 will move faster in thecoming months or years.

•  Premium Processing

PremiumProcessing is generally not available when filing a second I-140. However, insome cases, the USCIS may accept a Premium Processing request.  Premium processing is usually available whenfiling an amendment or new I-140.

•  Can I retain both an EB2 and EB3I-140 approval simultaneously?

Yes,you can hold two approved I-140s. Those filing for an EB3 downgrade bysubmitting a new or a second I-140 will retain an EB2 I-140, and hold the EB3I-140 once it is approved. If the EB3 downgrade is filed as an I-140 amendmentto the EB2 petition, the USCIS will convert the EB2 priority to an EB3 priorityand the EB2 will no longer be viable.

•  Medical Exams

Medicalexams must be submitted to the USCIS within 60 days of the physician’ssignature and, once filed with the USCIS, are valid for 2 years.  If theI-485 approval is not issued within 2 years, the applicant will have to get anew medical exam.  The I-485 can be filed now – without a medical exam – andthe USCIS will issue an RFE or a letter of deficiency later in the process andask for the medical exam at that time. 

• Child Status Protection Act (CSPA)Considerations

Becausethe USCIS is accepting the rarely used Filing Dates chart, beneficiaries shouldbe reminded that the privileges of the Child Status Protection Act (CSPA) doNOT extend to filing dates. If you have a foreign-born child nearing the age of21, please contact your MU attorney immediately.

• Filing EB3 I-140 concurrently withI-485

Applicantswill want to weigh the costs at risk by filing a concurrent I-485. By firstfiling the I-140 and securing an approved I-140 prior to filing an I-485, thebeneficiary and employer avoid the risk of having the I-485 automaticallydenied because of a denial of the I-140. Keep in mind that an automatic denialof an I-485 when filing concurrently means that none of the associated filingfees will be refunded.

On September 29, 2020, a District Court Judge in California stopped the USCIS from implementing their new fee rule set to go into effect on October 2, 2020. 

USCIS announced that the USCIS will not implement their new fee rule on October 2, 2020, including the new USCIS filing fees and new USCIS form versions.

The current USCIS filing fees and forms should be used until a decision is issued in this case. 

The Department of State has justissued the October 2020 Visa Bulletin. This is the first VisaBulletin of Fiscal Year 2021. This blog post analyzes this month’s VisaBulletin.

October 2021Visa Bulletin

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

Table B: Dates of Filing

The USCIS has just announced that it will allow the more favorable Date of Filing chart for I-485 Adjustment of Status. This means that all employment based immigrants in EB-1, EB-2 or EB-3 can file their I-485s starting October 1, 2020.  However if they are natives of India or China, their priority date must be earlier than these dates:

MU Law Analysis

This was the Visa Bulletinthat we have been expecting forsome time. Because of the State Department’s inability to issues immigrant visasfor much of 2020, there are many, many immigrant visas that are now part ofallocation for the new fiscal year. 

Both the Philippines andWorldwide (All Other) EB-3 have become current.  We expect these categories to stay currentfor the foreseeable future.  The onlyconstraint to the Philippine EB-3 visas being issued is the capacity at theEmbassy in Manila. 

The good news extended toIndia.  India EB-1, EB-2 and EB-3all moved forward, about 3-5 months in all of these categories.  Similarly, China EB-1, EB-2 andEB-3 all moved forward at about the same rates as India.  We do not expect a retrogression in thesecategories. 

Thanksto aggressive lobbying and advocacy by the AAIHR, MU Law believes thatimmigrant visas are again being issued to applicants who apply through the USEmbassy in Manila.  This week, a notablenumber of MU Law clients have been granted their visas.

MULaw recommends that all nurses who have been waiting to schedule their appointment begin contacting the Embassy and reset their appointments.

Previously,the US Embassy in Manila had denied virtually every nurse immigrant visa forthe entirety of 2020, including in January and February, before the pandemicbegan.