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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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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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In light of April 22nd  Executive Order that currently bans many individuals seeking to enter the U.S. as immigrants, we would like to provide this fact sheet from the American Immigration Council that distinguishes the difference between nonimmigrant and immigrant employment based visa classifications and outlines basic information about how the employment-based U.S. immigration system works.

Please contact if you have any questions about employment-based visa classifications in the U.S.

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Due to COVID-19 the Department of Homeland Security (DHS) has issued a temporary policy regarding expired List B identity documents used to complete Form I-9, Employment Eligibility Verification.

Beginning on May 1, identity documents found in List B set to expire on or after March 1, 2020, and not otherwise extended by the issuing authority, may be treated the same as if the employee presented a valid receipt for an acceptable document for Form I-9 purposes.

Click Here  to view E-Verify’s complete informational flyer which includes additional instructions.

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On January 31, 2020 the Trump Administration expanded Presidential Proclamation 9645(commonly known as the Travel Ban 3.0) to suspend U.S. entry of nationals from the following countries: Burma (Myanmar), Eritrea, Kyrgyzstan, Nigeria, Sudan, and Tanzania.

The extended ban suspends entry for immigrants of Burma and Eritrea, Kyrgyzstan and Nigeria (except special immigrants who have provided assistance to the U.S. government) and Diversity Visa immigrants of Sudan and Tanzania.

Presidential Proclamation 9645 was initially issued in September 2017 and suspended the entry of immigrants and nonimmigrants of Iran (except F and M students and J exchange visitors), immigrants and temporary tourist and business visitors of Libya and Yemen, immigrants and nonimmigrants of North Korea and Syria, and certain government officials and their family members of Venezuela. Chad was included in the initial ban but in April 2018, Proclamation 9723 removed the visa restrictions previously imposed on Chad.

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A San Francisco immigration judge has granted a respondent’s request to become a lawful permanent resident based on an employer-sponsored petition even though the respondent has lived and worked in the U.S. without authorization. The judge decided that when the respondent was granted Temporary Protected Status (TPS gives work permits and deportation protection to people from countries in crisis) he was granted an “admission” to the U.S.

Under the provision of the Immigration and Nationality Act Section 245(k), foreign citizens remain eligible to become permanent residents through an employer-sponsored petition if they have accrued no more than 180 days of unauthorized employment or residence after they were “admitted” to the U.S.

The San Francisco immigration judge decided that since the granting of TPS is an admission and this respondent had accrued fewer than 180 days of unauthorized employment and residence after TPS was granted, he was eligible for permanent residence.

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A group of eleven tech companies are suing the Department of Homeland Security arguing that USCIS’ February 2018 Policy Memo, “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites” exceeds the agency’s power because they issued the policy as a new rule without following required rule-making procedures.

The February 2018 memo stipulates that petitioners filing H-1B petitions involving third-party worksites must provide evidence of the beneficiary’s specific work assignments and evidence of their actual control over the beneficiary.

According to the tech companies filing suit, H-1B denial rates have skyrocketed since the memo was issued. They argue that the memo functions as a new rule even though it did not undergo the required notice-and-comment procedure.

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