Dept. of Labor Announces Updates to Implementation of the Final Rule Affecting Wages for H-1B and PERM Workers; District Court’s Order Vacating Final Rule

 

On June 23, 2021, the U.S. District Court for the Northern District of California issued an order in Chamber of Commerce, et al. v. DHS, et al., No. 20-cv-7331, vacating the Final Rule, Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States, 86 FR 3608 (Jan. 14, 2021), and remanding the matter back to the U.S. Department of Labor (DOL).

The DOL published the Final Rule on January 14, 2021, following district court orders that set aside an October 8, 2020 Interim Final Rule (IFR) (85 FR 63872). The Final Rule amended the DOL’s regulations governing the prevailing wages for employment opportunities that U.S. employers seek to fill with foreign workers on a permanent or temporary basis under the PERM, H-1B, H-1B1, or E-3 visa programs. The DOL has twice delayed the effective date of the Final Rule (86 FR 13995; 86 FR 26164). In light of these delays and now the June 23, 2021 order vacating the Final Rule, the operative version of the regulations at 20 CFR 656.40 and 20 CFR 655.731 continues to be the version in place on October 7, 2020, prior to the publication of the IFR.

Employment-Based Visa Numbers- July 2021 Eligibility to File Adjustment Applications

Fiscal Year 2022 H-1B Cap Update

The U.S. Citizenship and Immigration Services (USCIS) received 308,613 H-1B registrations during the initial registration period and selected 87,500 registrations projected as needed to reach the FY 2022 numerical allocations. The registrations were submitted by more than 37,000 prospective petitioners and roughly 48% of all registrations requested consideration under the advanced degree exemption.  

Per regulation, USCIS utilizes historical data related to approvals, denials, revocations, and other relevant factors to calculate the number of registrations needed to meet the H-1B cap for a given fiscal year. Based on historical data, the initial projected number of registrations required to meet the numerical limitations for FY 2022 was less than the initial projected number of registrations required for FY 2021.

For FY 2021, the USCIS received 274,237 H-1B registrations and initially selected 106,100 registrations projected as needed to reach the FY 2021 numerical allocations. It then conducted a second selection in August 2020 of an additional 18,315 registrations due to low filing volume from the initial selection. This resulted in a total of 124,415 selected registrations.

The USCIS has stated that it will continue to monitor petition filing rates and will determine, after the filing period closes, whether it will need to select additional registrations to reach the FY 2022 H-1B numerical allocations.

USCIS Eases Visitor Restrictions for Fully Vaccinated Individuals

USCIS has updated its visitor policy recently. Fully vaccinated individuals against COVID virus no longer have to wear a face covering. Individuals two years old and older who are not fully vaccinated must still wear a face covering. To be considered fully vaccinated, it must be at least two weeks after receiving a second dose in a two-dose series or at least two weeks after receiving a dose of a single-dose vaccine.

USCIS has eased other requirements for fully vaccinated individuals who do not have COVID-19 symptoms. Those who have returned from domestic air, international air or cruise ship travel in the past 10 days may enter USCIS facilities if they are fully vaccinated. Individuals who have been in close contact (within six feet for a total of 15 minutes or more) with anyone known to have COVID-19 in the previous 14 days may also enter USCIS facilities if they are fully vaccinated. Healthcare workers who consistently wear an N95 respirator and proper personal protective equipment or equivalent when in contact with COVID-19 positive individuals continue to be exempt from reporting close contact.
In DHS-controlled spaces, this guidance supersedes state, local, tribal, or territorial rules and regulations regarding face coverings.

USCIS to Issue Two-Year Validity EADs for Certain Adjustment Applicants

Starting June 9, 2021, the U.S. Citizenship and Immigration Services will issue two-year validity Employment Authorization Documents (EADs) to adjustment applicants whose Form I-485 is pending adjudication. The SUCIS states that in the interest of reducing the burden on both the agency and the public, because the current median processing time for certain adjustment of status applications is close to or greater than 1 year, USCIS will now issue initial and renewal EADs to adjustment applicants that are valid for 2 years.

National Interest Exceptions (NIE) for COVID-related Travel Bans

Dept. of State announced that the Secretary of State made a national interest determination regarding categories of travelers eligible for exceptions under Presidential Proclamations (PPs) 9984, 9992, 10143, 10199 [India], and similar subsequent PPs related to the spread of COVID-19. As a result of this determination, together with national interest determinations already in place, travelers subject to these proclamations due to their presence in China, Iran, India, Brazil, South Africa, the Schengen area, the United Kingdom, and Ireland, who are seeking to provide vital support or executive direction for critical infrastructure; those traveling to provide vital support or executive direction for significant economic activity in the United States; journalists; students and certain academics covered by exchange visitor programs; immigrants; and fiancés may now qualify for a National Interest Exception (NIE). Qualified travelers who are applying for or have valid visas or ESTA authorization may travel to the United States following the procedures currently in place, even as PPs 9984, 9992, 10143, and 10199 remain in effect.

EB-2 and EB-3 India to Advance in the Coming Months

At the AILA conference, the State Dept. announced that there will be huge advancements in the EB-2 and EB-3 Final Action date for India in the month of July (i.e. July Bulletin).   India EB-2 will advance by 8 months to July 1, 2011 when India EB-3 will rocket ahead by over one year from November 1, 2011 to January 1, 2013.  Charlie Oppenheim of State Dept. predicts that the employment-based green card limit will rise to at least 290,000 in fiscal year 2022.

Employment-Based Visa Numbers – Eligibility to File Adjustment of Status Applications

Employment- based	All Chargeability Areas Except Those Listed	CHINA- mainland born	EL SALVADOR GUATEMALA HONDURAS	INDIA	Mexico	Philippines	Vietnam
1st	C	C	C	C	C	C	C
2nd	C	01MAY17	C	01DEC10	C	C	C
3rd	C	01SEP18	C	01NOV11	C	C	C
Other Workers	C	01OCT09	C	01NOV11	C	C	C
4th	C	C	01NOV18	C	01NOV19	C	C
Certain Religious Workers	C	C	01NOV18	C	01NOV19	C	C
5th Non-Regional Center (C5 and T5)	C	15SEP15	C	C	C	C	15APR18
5th Regional Center (I5 and R5)	C	15SEP15	C	C	C	C	15APR18