The New EO on H-1B Workers at Federal Agencies

Transcending BordersSM

August 5, 2020

Executive Order on H-1B workers at Federal Agencies

On Monday, August 3rd, President Trump signed a new executive order (EO) barring H-1B workers from replacing American workers on a federal contracts. The EO creates an extra step for federal contractors and agencies intending to hire foreign workers on H-1Bs by requiring them to prove that the position could not be filled by a qualified U.S. worker. Specifically, the EO will require federal employers to complete an internal audit to determine compliance with the requirement that only U.S. nationals are employed for competitive positions.

The Department of Labor (DOL) is also finalizing guidance to prevent employers from moving
H-1B workers to job sites where U.S. workers may be displaced. While there are no new rules explicitly about LCAs, it is expected that DOL will also increase scrutiny of H-1B LCAs.

In reality, the new EO is not a significant deviation from existing policy but rather is another assault by the Trump administration on the H-1B program. For months now, the Administration has used the pandemic as an opportunity to push its immigration agenda. Since March, the Trump Administration has made close to twenty policy changes impacting tourists, refugees, international students and foreign workers, alleging that these changes protect public health and the American economy. In June, President Trump issued an EO halting visas for foreign workers and specifically targeting H-1B and H-4 visas for foreign workers and their families. The new EO also comes a few days after DOL and the Department of Homeland Security (DHS) entered into an agreement with DOL requiring United States Citizenship and Immigration Services (USCIS) to refer suspected H-1B violations to DOL, which may perform targeted site visits.

At this point, it is unclear what practical effect the new EO will have beyond requiring federal agencies to submit reports to the Office of Management and Budget (OMB) summarizing their internal audits. It is expected, however, that this policy shift could indicate increased H-1B investigations, RFEs and denials. Monday’s EO is vague but Grossman Young will continue to bring updates as new information arises.

If you are concerned that your or your employee’s case may be impacted by this EO, please reach out to GYH for assistance at info@grossmanyoung.com or by calling 301-917-6900.

Updated Public Charge Requirements during the Pandemic

A July 29th injunction out of New York State prevents DHS from implementing and/or enforcing the new Public Charge rule during a national health emergency in response to the novel Coronavirus pandemic. As long as this decision remains in effect, USCIS will apply the 1999 public charge guidance it followed prior to the new Pubic Charge Rule implemented in February 2020. Applications or petitions postmarked on or after July 29, 2020, should not include the Form I-944 or provide information about the receipt of public benefits on Form I-485, Form I-129, Form I-129CW, Form I-539, or Form I-539A.

Grossman Young is not submitting the I-944 with any applications while the injunction is in place, as instructed by USCIS. However, it is important to note that this injunction will very likely be lifted at some point. If the injunction is lifted, a completed I-944 may then need to be completed. Petitioners and/or beneficiaries are advised to collect the requested documents now, to prepare for the possibility of the injunction being lifted.

If you have questions about these procedures or Form I-944, do not hesitate to contact us.

USCIS Final Fee Rule

On August 3, 2020, USCIS released a final rule that substantially changes the fee schedule for immigration benefits, including significant increases for certain categories. Any application or petition postmarked after the effective date – October 2, 2020 – should follow the updated fee schedule.

The final rule increased USCIS fees by a weighted average of 20% and adds new fees for certain benefits. Key takeaways from the final rule include (but are not limited to):

  • Adjustment of Status (AOS) – Total cost of filing an AOS application is more than doubled ($2,270). The final rule removes the reduced Form I-485 filing fee for children under the age of 14 filing with their parent. A standard Form I-485 fee of $1,130 will apply to all applicants. It also requires separate fees for Forms I-765 ($550) and Forms I-131 ($590) filed in connection with applications for adjustment of status.
  • Asylum – The final rule establishes a $50 filing fee for Form I-589 and provides a $50 reduction in the fee for Form I-485 filed in the future for principal applicants who pay the $50 fee for Form I-589 and are subsequently granted asylum.
  • Employment-Based Nonimmigrant Petitions – The new fee schedule creates separate fees and forms for each visa classification filed on Form I-129, with fees increasing as much as 75% for an L-1 petition.
  • I-765, Application for Employment Authorization - Increase in fee for new applications/renewals from $410 to $550.
  • Naturalization – The filing fee for a Form N-400 will increase 83% from to $640 to $1,170. The final rule eliminates the reduced Form N-400 fee option for certain applicants.
  • Premium Processing – The final rule lengthens the timeframe for USCIS to take an adjudicative action on petitions filed with a request for premium processing from 15 calendar days to 15 business days.

If you have any questions or concerns about the new final fee rule, please do not hesitate to reach out. As always, we will continue to provide updates and information as it becomes available.