Updates about H1B Visa Changes, Proposed Rules, Lawsuits, Travel Ban, and its Aftermath
In this blog, we will review all the changes and issues in the context of US immigration in the Year 2020 and also provide a current status of the same issue or topic related to H1B.
We have divided sections by topics.
H1B Visa Changes
1. H1B Registration Process – Implementation of the Online System
- USCIS introduced the H1B registration process and online system for the first time, where employers can register their H1B applicants
- They have to pay $10 USD, and send preliminary info about the beneficiary, instead of putting together the whole packet
- They will only require sending all the documents only if the beneficiary has been selected in the lottery
- The people selected in the lottery will have 90 days to file their petition with the USCIS
- To beat the wave of applicants, it is important to start early, assess the eligibility, and file the H-1B as soon as the lottery is over
We have developed a checklist for both the processes which might be useful for you. The checklist can be found here
2. Second Round Lottery
- Initially, USCIS received 275,000 H1B registrations for H1B Visa 2021 season
- There was also a lottery conducted to select the required 85K slots
- Also, they conducted Second Round lottery on August 14th, 2020 as not all of the first-round selected applicants filed for H1Bs due to COVID-19
3. Acceptability of the Electronic Registration Process in General
- According to USCIS, the new process of registration was well-received by all the users and they received good feedback
- USCIS also did a lot of public outreach and conducted free webinars to educate various stakeholders
- According to USCIS, the new process has reduced a lot of paper and person-hour(s) between them and employers and data exchanges between them and the H1B Sponsors
- They also believed that the new system is one way to modernize the H1B Program.
We wrote a few important points about H1B registration, last year.
You can take look at it here.
Please let us know if you have additional questions about the upcoming registration period.
Proposed Rules and Lawsuits
1. USCIS Settlement; Cancelled 2018 H1B Policy memo, Itinerary
- USCIS lost a case on March 10ththat was filed by the IT Serve Alliance group
- As part of the settlement, they had to cancel the 2018 H1B Policy memo with Employer-Employee relationship requirements, detailed itinerary requirements, work order details, etc.
- USCIS has an itinerary requirement from 1991 that is listed at 8 C.F.R. § 214.2(h)(2)(i)(B)
- The text is unclear and has caused a lot of issues for the employer
- The settlement is that USCIS will try not to use this requirement until a formal regulation and guidance is given by them
- In some cases, they may use it as needed though
- Employer-Employee Relationship Clause not applicable
- USCIS during the re-adjudication of the cases will not apply the current definition as in regulation 8 C.F.R. § 214.2(h)(4)(ii)
- No Shorter Duration of Approvals without Explanation
- In the lawsuit, IT Serve showed proof of USCIS giving one day of H1B approval
- USCIS will not issue a shorter duration of approvals than what is requested
- If they do so, they need to give a brief explanation of the reason for the same
The original Rescission of Policy Memoranda can be found here
2. Strengthen H1B Program Regulation and Lawsuits
DHS published an interim final rule on October 8th, 2020 to strengthen the H1B program, which aimed to change the following:
- Definition of specialty occupation
- Changed the employer-employee relationship requirements
- Evidence of specialty occupation works like MSA, WO, SOW, etc.
- 1 Year H1B approvals for third party placements
- New site visits standards, revoke H1B if refused to cooperate
- It was taken to court and eventually, the court canceled the rule from being effective on December 4th, 2020
- A California Court issued an order canceling the entire H1B, PERM Wage Levels Change Rule, including DHS rule on Strengthening H1B program
- The lawsuit was filed by the US Chamber of Commerce stating that DOL and DHS did not follow proper notice and comment period
- Another lawsuit was filed by IT Serve to stop implementing the rule at a Court in New Jersey
- The judgment was given by this court with an injunction order to stop implementation of the Wage Levels Changes Rule for H1B and PERM
Finally, the US Dept of Labor issued an Official Announcement stating that they are canceling the implementation of the H1B Wage Levels Change Rule based on these two court orders mentioned above.
More detailed analysis of the IT Serve Alliance lawsuit can be found here
3. H1B, PERM Wage Levels Changes Rule, Lawsuits
- US Dept of Labor published a new regulation changing the H1B, PERM wage levels
- As per the new rule, the wages for H1B would have gone up close to 40% or more depending on the position
- Fortunately, this was taken to court and was canceled by Court Order in the first week of December.
- There was a total of 3 lawsuits on this rule
Currently, there are four prevailing wage levels defined that are used by the US Dept of Labor for H1B Visa LCAs and the PERM process. The prevailing wage levels for a position vary by experience, education, and locality
Read our Prevailing Wage 101 blog here, if you want to know more about Prevailing Wage Levels.
4. H1B Lottery to be based on Wage Levels – Proposed Rule
- USCIS published a regulation for public comments to have an H1B lottery based on Wage Levels when there are more registrations
- DHS announced a new H1B rule on January 7, 2021, that will change the way the H1B registration lottery is conducted
- DHS plans to change the H1B lottery selection based on the prevailing wage that the employer plans to offer for that position
- DHS is seeking public comments as part of the regulatory process
- This rule is not final yet, but in the process
You can see H1B Prevailing Wage Level Distribution for
You can look for Green Card Database related info at https://h1bgrader.com/ H1B Grader has a repository of past H1B data.
5. Premium Processing Fee increased to $2500 for H1B, L1, I-140, Others
- The premium processing fee for current eligible categories such as H1B, L1, I-140, and other categories will be increased to $2,500 USD. The current premium processing fee is $1440 USD
- The fee is going up by over $1,000. This fee increase applies to all categories that have premium processing before August 1, 2020
- The only exception for this fee increase is H2B and R-1 category, they will have a fee of $1,500 USD
Travel Ban of 2020 and its Aftermath
- on June 22, 2020, Trump officially signed the Executive Order(EO) that banned the entry of H1B, H4, L1, L2, J1, and others until the end of 2020, with few exceptions
- Also, in early October 2020, a court gave an order indicating that the travel ban is blocked for the plaintiffs, who were part of the lawsuit
- As per the official WhiteHouse.gov press release, the H1B, L1 Travel Ban continues to be in effect until March 31st, 2021
- It extends the previous Travel Ban related Proclamations / Executive Orders issued in April and June 2020
- All the previous clauses remain in effect as per the travel ban announcements and there are no changes. They are just modifying a section that is related to date as per the announcements
- Also, the previous guidance from the US Dept of State on the Court Order also remains in effect and there would exceptions for anyone that was part of the lawsuit
- Also, the Proclamation has a clause that tells that DHS and Dept of Labor need to review within 15 days and recommend any changes as needed
We are closely monitoring the travel ban; we will post an update on this policy soon.
Meanwhile, If you have any question or comments about H-1B registration, eligibility, or have questions about the Green Card procedure in general, you can schedule a consultation with us: