H1-B Visa Program: Interim Final Rule

DHS has announced its interim final rule (IFR) that amounts to an overhaul of the H-1B nonimmigrant visa program with a goal to protect the U.S. labor market. According to DHS, “more than half a million H-1B nonimmigrants in the United States have been used to displace U.S. workers,” which had, allegedly, led to reduced wages in certain industries. The new IFR is intended to “combat the use of H-1B workers to serve as a low-cost replacement for otherwise qualified American workers.” The IFR will (1) narrow the definition of “specialty occupation” by increasing expectations for the close match between the proffered position and the incumbent’s education; (2) require U.S. companies to make bona fide offers to “real employees;” and (3) increase enforcement efforts by the DHS before, during, and after the H-1B petition approval. The IFR is expected to come into effect 60 days after its publication in the Federal Register as the government is attempting to bypass the regular notice and public comment period justifying this unusual approach by the COVID pandemic’s economic impact. Importantly, one particularly taxing segment of the IFR took effect immediately – i.e., the new prevailing wages required for use in H-1B and labor certification proceedings have already been published and put in place for mandatory use. The new prevailing wages are drastically higher for the majority of occupational categories utilized in the course of the H-1B and labor certification proceedings for foreign professionals. The IFR as a whole and the prevailing wage increase in particular are, undoubtedly, going to be challenged through the court system and injunctive relief is likely to follow. However, for the time being, with the new prevailing wages in effect, employers sponsoring H-1B and PERM labor certifications for their foreign national employees should discuss this development and related planning with their immigration legal counsel.

Immigration Fee Increase

DHS’s recently published final rule “adjusting” and, in effect, majorly increasing, fees for a number of immigration and naturalization benefits had been enjoined. While it is yet unknown whether the current temporary injunction will be eventually lifted, thus, allowing the new fees to become effective, or if the government’s new fees will be enjoined permanently, it is advisable for eligible applicants to utilize the current hiatus and submit their applications to U.S. Citizenship and Immigration Services (USCIS) at this time. This is particularly relevant for naturalization applicants since the final rule intends to increase the filing fees for this benefit by more than 80%. DHS argues that the fee increase is part of the agency’s regular administrative process to offset the operational costs, but, the significant fee increase for multiple popular immigration benefit categories, is likely to deter applicants that can no longer afford the costly filings and, most notably, will affect individual applicants and small businesses.

U.S. Sponsors of Foreign Relatives

Another announcement from DHS has notified the public of the upcoming notice of proposed rulemaking pertaining to government’s intention to tighten regulations surrounding U.S. citizens, U.S. nationals, and permanent residents’ ability to sponsor foreign relatives for immigration to the U.S. The new rule would require U.S. sponsors of foreign relatives who choose to sponsor an immigrant by submitting an affidavit of support mandated under the immigration regulations for certain family-based immigrant categories, to provide credit reports and credit scores, certified copies of income tax returns for the last three years, and bank account information to demonstrate they do not only possess the income required for the sponsorship, but can maintain it throughout the sponsorship period. Moreover, any sponsor found to have received means-tested public benefits within the 36 months of submitting a Form I-864, or to have defaulted on previous obligations to support an intending immigrant, must be backed by a joint sponsor who has received no such public benefits during that time. Other proposed changes include simplification of the government’s enforcement efforts by eliminating the subpoena requirement before USCIS can provide certain information to benefit-granting agencies and other parties authorized to pursue defaulting sponsors, and limiting the type and number of household members who can serve as joint sponsors.