Newsletter – November 2020

News RoomFebruary 23, 2022

Newsletter – November 2020

DOS Proposes to Eliminate B-1 in Lieu of H-1B Visa

On October 21, the Department of State (DOS) issued a notice of proposed rulemaking to amend its regulation governing nonimmigrant visas for temporary visitors for business (B-1 nonimmigrant visas). The rule proposes to eliminate the ability for foreign nationals to obtain a B-1 in lieu of H-1B or H-3 trainee visa (BILOH). Presently, business visitors from international companies may apply for a BILOH at a consulate abroad to come into the U.S. to perform short-term (generally less than six months) H-1B or H-3 professional work. A similar policy has also allowed persons of distinguished merit ability, such as those in the entertainment or athletic fields, to enter the US as business visitors which the DOS also proposes to eliminate.

The DOS contends that the changes help further the goals of Executive Order 13788 (“Buy American and Hire American”). According to the DOS, the proposed changes would not affect more than 6,000 to 8,000 foreign nationals per year, specifically foreign nationals intending to provide services in a specialty occupation in the U.S. If finalized, the rule would not revoke existing BILOH visas, but current BILOH visa holders may be subject to independent reviews by DHS at ports of entries.

Comments on the proposed regulation are due on December 21, 2020. Please contact a member of our firm if you have questions regarding this proposed policy change or would like assistance submitting a comment.

DHS Proposes to Revise H-1B Cap Lottery by Prioritizing Petitions with Highest Wage Levels

On November 2, the U.S. Department of Homeland Security (DHS) proposed a rule seeking to replace the process by which United States Citizenship and Immigration Services (USCIS) selects who can file H-1B cap-subject petitions from random lottery selection to a process that prioritizes H-1B registrations with the highest wage levels.

On an annual basis, USCIS is authorized to grant 65,000 initial H-1B visas (regular cap), and an additional 20,000 H-1B visas for individuals with an advanced degree earned from U.S. universities or colleges (master’s cap). This is commonly referred to as the H-1B “cap.” Historically, selection into the H-1B cap has been random.

Under the proposed rule, USCIS will first prioritize the selection of cases based on the highest wage levels for the SOC codes in the area(s) of intended employment – starting with Occupational Employment Statistics (OES) wage level IV, which is currently set at the 95th percentile of DOL wage data as a result of the October 8th IFR published in the Federal Register, and moving downwards. For registrations using an authoritative source (such as a private wage survey), if the proffered wage falls below an OES wage level 1, then USCIS would rank the registration as OES wage level 1. The obvious outcome of this change is that H-1Bs would be awarded only to the most senior employees at the highest paying companies. USCIS even sought to close a possible loop hole as they may deny or revoke a subsequent or amended H-1B petition if it determines that the filing of the new or amended petition is part of the employer’s attempt to unfairly decrease the proffered wage to an amount that would be equivalent to a lower wage level, after listing a higher wage level on the registration (or petition, if registration is suspended) to increase the odds of selection.

Critics of the rule assert that it exceeds the Congressional intent of the enabling statute for H-1Bs. Moreover, it would have a chilling impact on US employers which rely on hiring entry-level professional employees such as recently graduated college students. The proposed rule is scheduled to be finalized after January 4, 2021 and court challenges have already been announced. There is a short window in which the current administration could finalize the proposed rule, if not successfully enjoined in federal court. However, it would be our hope and expectation that, given the new Administration change in January, it is more likely than not that this proposed regulation will not ultimately take effect.
The 30-day comment period for this proposed rule ends on December 2, 2020. We encourage all interested parties to submit a comment.

ICE Provides Instructions for I-9 Completion During Pandemic

Immigration and Customs Enforcement (ICE) recently provided long-awaited instructions for employers so that they may properly update I-9 forms for hires made virtually during the COVID-19 pandemic. Beginning in March, ICE has been flexible about how to complete Form I-9, allowing companies working remotely to inspect documents virtually. Since then, the flexibility period has been extended again and again, with the most recent extension in September. The current expiration for accommodations due to COVID is November 19, 2020, though it is very possible that ICE may extend them again.

Please contact our office if you have any questions relating to I-9 compliance or the ICE’s accommodations due to COVID-19.

Seventh Circuity Stays Lower Court’s Decision to Vacate DHS Public Charge Rule

On November 3, the Seventh Circuit issued a stay of a federal district court’s decision to vacate the DHS Public Charge Final Rule pending appeal. A day before, the district court in Cook County, Illinois ruled that the public charge final rule exceeds DHS’ authority under the public charge provision of the Immigration and Nationality Act; (2) is not in accordance with law; and (3) is arbitrary and capricious. Hence, for the time being, adjustment applicants who are subject to a public charge determination, must continue submitting Form I-944 with their adjustment applications.

We have been following litigation related to the Public Charge Final Rule for several months, and it really does make your head spin and hurt! In July, an injunction suspended compliance with the rule for roughly two months until the injunction was overturned. Then, this recent court decision to invalidate the rule was the most far reaching decision on the rule to date. We expected the rule was “dead” until the Court of Appeals resurrected it and stayed the lower court decision pending appeal. While we anticipate the Public Charge Final Rule to ultimately be struck down (or rescinded by a Biden administration), it will still be several months until we have an update, during which period the I-944 is required with every I-485 filing subject to a public charge determination.

The Election is Over – Now What Does That Mean for Immigration? [two dates to choose from]

America has chosen former Vice President Joe Biden as its 46th president. What does that mean for the US immigration? A Biden presidency is suggestive of a return to old immigration policies and a final solution for undocumented populations including Dreamers. Early reporting suggests the Muslim Travel Ban is the first relic of President Trump’s legacy to go. Managing Partner, David Zaritzky Brown, will give insight on what to expect in a Biden presidency, both in the first 100 days, and beyond. Also, given the monumental month we have just endured in our field, David will tackle current issues as well.

In dissecting the future of our field David will highlight what employers can do now to prepare for anticipated changes. You won’t want to miss this opportunity to be prepared.

If your company or fellow HR colleague can benefit from such a session, please register, and invite your friends.

REGISTER HERE For November 17th


REGISTER HERE For November 19th

Once registered, you will receive an email with a link to use to join the video chat on the day of the event. Please note: This link should not be shared with others; it is unique to you. If you ever misplace the invitation link, simply visit the webinar schedule on our website to join the LIVE chat.

If you have contacts or colleagues who may benefit from our talks, you are welcome to invite them to join our VIP invitation list by sharing our webinar schedule where they can subscribe for further information.

Don’t miss these opportunities to increase your knowledge on important immigration issues!

Thank you and we look forward to having you at the event.

Best Regards,

The Team at Brown Immigration Law

** This newsletter/memo is provided for informational and discussion purposes only. It does not act as a substitute for direct legal contact on an individual basis **