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On October 6 the Department of Labor (DOL) issued guidance changing the wage determination process for H-1B, H-1B1, E-3, and employment-based immigrant petitions. Under the new rule, DOL will differently assess Occupational Employment Statistics (OES) data to calculate the “prevailing” wage. The rule effectively makes sponsorship of these petitions more expensive by raising the minimum qualifying wage that employers must pay.

Within the last week, multiple lawsuits have been filed challenging the rule. The first, an October 16 suit by tech companies, seeks a preliminary and permanent injunction, arguing that the new wage standards conflict with statutory requirements under the Immigration and Nationality Act. Further, plaintiffs charge that DOL released the guidance without the requisite notice and comment period. The rule was announced on October 6 and took effect on October 8; by October 13, DOL was issuing wage determinations based on the revised OES data.

Tech companies also contest DOL’s underlying reasoning. While DOL cited high national unemployment as the basis for the statistical adjustment, government data shows low unemployment for technology positions – a common occupation for the affected highly-skilled workers.

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On October 5, USCIS released a reminder that employers enrolled in E-Verify must take action on Tentative Nonconfirmations (TNCs) within 10 working days. Starting on November 5, employers who are out of compliance will begin receiving notices after 10 days urging them to take action on their employee’s TNC.

TNCs indicate a potential mismatch between the Form I-9, Employment Eligibility Verification and Social Security Administration (SSA) or Department of Homeland Security (DHS) records.

When employers receive a TNC, they must notify the employee; provide the employee with the Further Action Notice; privately review the Further Action Notice with the employee; and have the employee confirm the information listed.

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On October 1 the Trump administration announced a new proposal to limit U.S refugee admissions to 15,000 for fiscal year 2021. That number would represent a record low, down from a ceiling of 18,000 this fiscal year.

The actual number of refugees admitted tends to fall below the announced ceiling. This year only 11,000 refugees were admitted – also a record low.

Under previous administrations, the US accepted more refugees annually than all other nations combined. As the chart below demonstrates, refugee admissions have now decreased every year since 2017.

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The visa bulletin is out at this link:  October 2020 Visa Bulletin.

Contact our office if you have any questions about preference categories or dates for filing and final action. Our email is provided at the end of this post.

Employment based preferences must use the Final Action Dates chart. The employment-based categories are as follows: EB-1 is current for all countries except China (June 1, 2018) and India (June 1, 2018); EB-2 is current for all countries except China (March 1, 2016) and India (September 1, 2009); EB-3 is current for all countries except China (July 1, 2017) and India (January 15, 2010); EB-3 Other Workers is current for all countries except China (December 1, 2008) and India (January 15, 2010). EB-4 are current for all countries except El Salvador, Guatemala, and Honduras (August 1, 2017) and Mexico (September 1, 2018); Religious Worker visas are unauthorized for all countries; EB-5 non-regional centers are current for all countries except China (August 15, 2015) and Vietnam (August 1, 2017); EB-5 regional centers are unauthorized for all countries.

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On Thursday, September 10th, a panel of federal judges ruled that President Donald Trump’s order to subtract the number of unauthorized immigrants from the census data in each state violates federal law. In July, President Trump ordered the U.S Department of Commerce to collect data about whether census respondents were legally living in the country, and then subtract the number of unauthorized immigrants from the census numbers.

Thirty-six states, the District of Columbia, fifteen cities and counties, a coalition of non-government organizations, and the United States Conference of mayors immediately fought the order, identifying it as an unconstitutional move that will strip citizens nationwide of appropriate federal funding and political representation.

The judicial panel made up of U.S. Circuit Judges Richard C. Wesley, Peter W. Hall, and U.S. District Judge Jesse M. Furman, unanimously sided with the plaintiffs noting that the memo violated the law by seeking to change the apportionment base. The panel explained the order disrupts Congress’s delegation of constitutional responsibility to count the whole number of persons in each state and the apportion members of the House of Representatives among the states according to their respective numbers.

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USCIS updated its Policy Manual with guidance on the final fee rule it issued earlier this month. On August 3, 2020, USCIS published a final rule in the Federal Register. The new policy guidance, effective October 2, 2020, describes the rule’s adjustments in filing fees for some forms. It also provides guidance on a range of topics, including fee exemption, waiver policies, new processing time limits, and modifications to intercounty adoption processing.

USCIS is increasing fees in order to meet operating costs. 97% of USCIS’ budget comes from fees collected. Estimating that keeping fees at current levels will leave USCIS underfunded by $1 billion per year, DHS is increasing USCIS filing fees by a weighted average of 20%. Here is a table of fee changes to some of the more common employment-based immigrant and nonimmigrant petition types:

Petition Current Fee Final Fee Change
I-129CW, I-129E&TN, and I-129MISC $460 $695 + $235
I-129 H1 $460 $555 + $95
I-131 Application for Travel Document $575 $590 + $15
I-140 Immigrant Petition for Alien Worker $700 $555 – $145
I-485 Application to Register Permanent Residence $1140 $1130 – $10
I-539 Application to Extend/Change Nonimmigrant

Status (online filing)

$370 $390 + $20
I-539 Application to Extend/Change Nonimmigrant

Status (paper filing)

$370 $400 + $30
I-765 Application for Employment Authorization

(Non-DACA)

$410 $550 + $140
USCIS Immigrant Fee $220 $190 – $30
Biometric Services (Non-DACA) $85 $30 – $55

 

You can view the full list of changes, and table of fees here.

To view the fee schedule, click here. 

If you have any questions, please contact our office at immigration@cornerlaw.com.

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U.S. Immigration and Customs Enforcement (ICE) issued a broadcast message noting, their Student and Exchange Visitor Program (SEVP) is conducting a review of SEVIS records for nonimmigrant students participating in Optional Practical Training (OPT) who have not provided employment information. SEVP is mailing notices directly to the students who have not reported employer information and have exceeded 90 days of unemployment.

SEVP’s “Notice of Failure to Report Employment While on Optional Practical Training” informs students of a lack of employment information in their Student and Exchange Visitor Information System (SEVIS) records. The notice provides students an opportunity to update their records within 15 days from the notice date, either through their designated school official (DSO) or directly through the SEVP Portal.

ICE informs students, if their SEVIS records are not updated, SEVP will set their records to “terminated,” which can result in students being considered out of status for exceeding regulated periods of unemployment while in OPT.

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On Tuesday, August 25th, a D.C. federal court ruled the U.S. Department of Defense (DOD) unlawfully imposed service duration requirements for foreign military recruits seeking to obtain citizenship. According to U.S. District Judge Ellen S. Huvelle, the DOD does not have the authority to set naturalization eligibility standards.

Judge Huvelle’s ruling is based on the Immigration and Nationality Act, which governs immigration proceedings. According to Judge Huvelle, U.S. Citizenship and Immigration Services (USCIS) holds sole authority under the act to determine whether foreign members of the military have served honorably when adjudicating citizenship applications.

The immigration statute does not explicitly define what “served honorably” in the military means. However, the DOD does not have the authority to define the term for USCIS according to the court’s opinion. Judge Huvelle explains that the statute contemplates a role for the Department of Defense, which is limited to certifying a foreign military member’s honorable service. However, the department cannot rewrite the statute to define standards for N-426 certificates.

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Due to EAD production delays, USCIS announced that employees may use a Form I-797, Notice of Action, with a notice date from 12/1/19 to 8/20/20 informing approval of an Application for Employment Authorization (Form I-765) as a list C #7 document for Form I-9 compliance. Employees may do so until 12/1/20.

Employees who present a Form I-797 Notice of Action for new employment must also present their employer with an acceptable identity document. By December 1, 2020 employees will need to present their employers with new evidence of employment authorization.

Find the full USCIS announcement here.

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The COVID-19 pandemic has caused rising unemployment in the United States, and unemployment days that exceed federal limits can result in a loss of status. Thus, USCIS reminds F-1 foreign nationals to update their employer information online with current unemployment data.

F-1 foreign nationals who are participating in post-completion Optical Practical Training (OPT), along with their designated school officials (DSOs), must update employer information in the Student and Exchange Visitor Information System (SEVIS). They can do this directly through the Student and Exchange Visitor Program (SEVP) Portal, or provide the information to their DSO. An F-1 foreign national must notify their DSO within 10 days of any changes to their personal or employment information. A DSO must update SEVIS within 21 days of receiving these changes.

It is important that F-1 foreign nationals and DSOs update this information in a timely manner. SEVIS will count each day without employer information toward the total number of unemployment days allowed. Failure to update this information, and exceeding unemployment limits, may result in:

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