U.S. Immigration Updates: H-1B Cap, Present Wage Rule, and Worldwide Journey Updates – The Nationwide Regulation Assessment


Wednesday, January 20, 2021

H-1B plug choice course of

On January eight, 2021, america Citizenship and Immigration Companies (USCIS) launched a closing rule modifying the H-1B cap choice course of. This rule modifies the choice course of for the H-1B cap by changing the random choice course of with a range course of primarily based on wage degree, giving choice to petitions utilizing a degree IV wage and continuing in descending order with wage ranges III, II and I. solely apply to new H-1B petitions topic to a cap. he doesn’t have an effect on individuals who at present maintain H-1B standing. The rule is anticipated to enter impact 60 days after its launch (March 9, 2021), nevertheless it's unclear whether or not it is going to be applied in time for this 12 months's capping course of. Some issues may derail or delay the rule, together with:

The ultimate rule is anticipated to return into impact on March 9, 2021, which may happen after the registration course of begins.

Biden administration may delay implementation. The transition group has indicated that the brand new administration will situation a memorandum on January 20, 2021, delaying the implementation of any rules issued because the election however not but entered into drive. It’s anticipated that the Biden administration will undertake a 60-day deferred efficient date for these rules. How this impacts this rule will rely on the wording of the memorandum. This might delay the rule both to March 21, 2021 (sixty days from the date of the Presidential Memorandum) or Might eight, 2021 (sixty days from the date of entry into drive of the regulation as printed within the Federal Register).

The rule will doubtless be challenged, which may have an effect on when and when it comes into impact.

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DOL closing rule on the calculation of wage ranges in drive

On January 14, 2021, the US Division of Labor issued a closing rule adopting adjustments from its October 2020 Interim Last Rule (IFR). The October IFR was revoked by a US district courtroom. The aim of the rule is to "replace the calculation of wage ranges in impact beneath the present four-level wage construction to higher mirror the precise wages earned by American employees employed in the identical method as overseas employees. ". This rule, just like the H-1B cap rule, will come into impact 60 days after it’s posted within the Federal Register, however will probably be lined by the 60-day deferred efficient date famous above.

The rule amends current rules governing everlasting work certifications and dealing circumstances purposes (LCA). Particularly, the rule will change the calculation of efficient wage ranges, leading to greater efficient wages for all occupations for every wage degree primarily based on the OES. Salaries will now be calculated as follows:

Stage I wage: 35th percentile (from 17th percentile)

Stage II wage: 53rd percentile (from 34th percentile)

Stage III wage: 72nd percentile (from 50th percentile)

Stage IV wage: 90th percentile (from 67th percentile)

The rule will probably be phased in from July 2021. The rule will come into full drive in July 2024.

We anticipate that the brand new guidelines will face authorized challenges and might be suspended by the White Home Biden. President-elect Joe Biden's transition group has introduced plans to situation a memo, efficient January 20, 2021, that may cease or delay actions by President Trump's administration that won’t have took impact on inauguration day. The be aware would apply to rules and steerage paperwork that haven’t been printed within the Federal Register or which have set an efficient date after January 20, 2021.

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H-1B ceiling recording and planning

Even with the proposed adjustments outlined above, it's time to start out planning for the FY2022 H-1B capping season. Whereas precise dates haven’t been introduced for the H-1B registration program, the registration course of is anticipated to be just like final 12 months.

Earlier than submitting an H-1B cap petition, USCIS requires that employers or their approved representatives first full a web based registration for every petition. USCIS will then run the H-1B cap lottery (if obligatory) primarily based on these data. Employers would solely file petitions primarily based on chosen registrations. Assuming the method goes because it did final 12 months, the lottery will run on or earlier than March 31, 2021, and employers will then have 90 days to file a petition concerning the caps for chosen registrations.

It’s anticipated that, as in earlier years, the H-1B cap will probably be reached as soon as the entry system is opened, and the choice course of for the H-1B cap or lottery will probably be performed once more. Though the registration system solely requires primary firm and beneficiary data, employers should analyze every case to verify it’s permitted. Steps to take earlier than registration might embrace:

Establish the workers for whom a registration will probably be submitted

Analyze the training to see if the recipient will qualify for the grasp's cap exemption within the US

Acquiring Credential Assessments for Non-U.S. Levels

Immigration standing assessment and evaluation

Preparation of LCA

Acquire detailed job descriptions

The digital registration system was a big change for the H-1B ceiling system. Final 12 months’s course of went comparatively properly.

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Replace on worldwide journey and revoke journey restrictions from UK, Brazil and Schengen nations

On January 12, 2021, the Facilities for Illness Management introduced that beginning January 26, 2021, worldwide vacationers getting into america will probably be required to current a detrimental COVID-19 check or restoration documentation earlier than they will board their airplane. flight. This new requirement will apply to all Air passengers, two years of age or older, touring to america, together with United States residents and lawful everlasting residents. Air passengers should be examined for viruses (a check for the present an infection) inside three days of their flight departing to america.

On January 18, 2021, President Trump issued an govt order ending the 14-day journey restriction for individuals touring from the UK, Brazil and Schengen nations so long as they’ve a detrimental COVID outcome . The termination is anticipated to take impact on January 26, 2021. It’s not recognized whether or not President Biden will enable the termination.

Extension of govt decrees on immigration

President Trump has prolonged govt orders limiting employment-based immigration that have been initially scheduled to run out on December 31, 2020. These orders droop the entry into america of a number of classes of non-visa visas. immigrant and the issuance of immigrant visas to inexperienced card candidates exterior america, with a couple of exceptions. Government Orders in Council have been prolonged till March 31, 2021. President-elect Biden might rescind the orders after taking workplace on January 20, 2021; nonetheless, he has but to substantiate whether or not he’ll.

© 2020 Faegre Drinker Biddle & Reath LLP. All rights reserved.Assessment of nationwide laws, quantity XI, quantity 20


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