Communique – Volume 16, Number 9

October 2020 (part 2)

Greetings from the ISSO!

In this issue:

While it has been just over a week since our last Scholar Communique, there have now been two additional rules that have been published related to H-1B employees wages and eligibility requirements and a fee increase that hosting departments need to be aware of. In our prior Scholar Communique, we provided details about proposed new regulations related to J-1 Exchange Visitors and F-1 Students and this issue will focus on new regulations pertaining to H-1B employees.

Two Rules Change H-1B Wages and Eligibility Requirements

Please see the ISSO news section for summaries of both the US Department of Labor and the US Department of Homeland Security rules published last week.

The Department of Labor (DOL) published an interim final rule on October 8, 2020 entitled Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States. This rule modifies how the DOL calculates the prevailing wages for employment based non-immigrant petitions, including the H-1B classifications and for applicable immigrant petitions (greencard). Essentially, the DOL is changing how it maps the wage levels for foreign workers to the Bureau of Labor Statistics underlying wage statistics. The DOL asserts that these changes, which were effective immediately, better reflect the actual wages earned by US workers and allow them to more effectively ensure that the employment of immigrant and nonimmigrant workers do not adversely affect the wages and job opportunities of US workers.

More specifically, the new ‘level 1’ wage is now calculated at the 45th percentile rather than the 17th percentile and the new ‘level 2’ wage increased from 34% to 62%. The DOL has been using the prior percentiles in their wage level calculations since 2009 so this is a significant change. Most faculty and postdoctoral positions at BU tend to fall at either a ‘level 1’ or ‘level 2’ wage depending the minimum requirements for the particular DOL job classification match (field, job duties, supervisory duties, experience required etc.). Thus, we anticipate that the new calculations may hinder a hiring department’s ability to sponsor or continue to sponsor certain employees in the H-1B classification.

In addition, the Department of Homeland Security published an interim final rule on October 8, 2020 entitled Strengthening the H-1B Nonimmigrant Visa Classification Program. This rule will go into effect on December 7, 2020 and amends certain regulations pertaining to the documentary evidence and eligibility requirements of the H-1B classification as well as program administration restrictions pertaining to third party placements.

We anticipate that these proposed changes will add significant time to the petition preparation process for not only the ISSO but also for the host department. Departments will need to provide a lot more detail about the job minimums and requirements for each position and may also need to submit additional documentation as evidence of the nature of the employer-employee relationship and/or worksite arrangement. The regulations also indicate that workplace compliance checks (ie. site visits) will become more routine.

Lastly, the new regulations will certainly invite more scrutiny at the USCIS adjudication process as we expect that number of ‘Requests for Additional Evidence (RFE) and overall petition denials will increase. In addition, the new regulations will likely limit our our ability to sponsor positions that are multi-disciplinary in nature or that have broad qualifying requirements as these positions will not likely qualify under the new ‘specialty occupation’ definitions.

While litigation is expected to be filed related to both of the new rules, it is unclear when that will happen or how that will effect one or both of the new rules. In the meantime, the ISSO will continue to work with host departments and employees who require a change to or extension of their H-1B status to determine whether or not the new rules will impact them directly.

Department administrators should periodically review the ISSO News for additional details and contact their Scholar Advisor with any questions. In addition, we encourage you to sign up for our upcoming Administrator Q & A (see below) as we will discuss these new regulations at that time.

Premium Processing Fee Increase Announced

This afternoon USCIS announced that it will increase premium processing fees beginning on Monday, October 19, 2020, as included in the Continuing Appropriations Act, 2021 and Other Extensions Act, which was signed into law on September 30, 2020. Fees will increase from $1,440 to $2,500 for benefit requests that are already eligible for premium processing services through the Form I-907, Request for Premium Processing. Please consult with your Scholar Advisor if you have a request in process at the ISSO as it is likely that some cases will require the new fee since USCIS provided no advance notice.

Administrator Q & A with ISSO Scholar Services Team

The proposed regulatory changes referenced above and in the ISSO Communique, Volume 16, Number 8 combined with the continued COVID-related travel bans, presidential proclamations and visa processing suspensions can be difficult to understand and communicate to your international scholar community. We encourage interested faculty and administrators to join us for a Q & A with ISSO Scholar Services on Tuesday, October 20 at 4:00 p.m. so that we can provide clarifying details and answer your questions. Registration is required to confirm your attendance via Zoom. This zoom workshop is intended for department administrators. We will hold a similar session specifically for scholars and employees in a few weeks.

The Scholar Services Team remains committed to advising and assisting our international scholar community during this challenging time. We appreciate your  continued support!