May 19, 2023 - Weekly Immigration News Update

Posted by Keshab R. Seadie | May 19, 2023 | 0 Comments

H-1B and LCA Compliance Protocol: Lesson Learned

A recent case involving Peri Software Solutions, Inc. has highlighted the significance of complying with H-1B regulations. The Department of Labor's Wage and Hour Division found that the company owed $1,456,4222 in back wages to 163 H-1B workers due to regulatory violations. Additionally, the employer was cited for $439,000 in civil money penalties for failing to pay the prevailing wage and for imposing contractual penalties on H-1B employees who left the company.

The Department of Labor is also seeking a two-year debarment of Peri Software Solutions from the H-1B program. This case follows a similar administrative law decision, Advance Professional Marketing, where significant penalties were imposed for H-1B violations. It is clear that the Department of Labor is taking a strong enforcement approach to H-1B compliance. Employers must ensure they carefully prepare and maintain their Labor Condition Application (LCA) documents, pay H-1B workers the required wages, and refrain from imposing contractual penalties for leaving the company.

When H-1B Employment Relationship Begins

In the case of Vyasabattu v. eSemantiks, it was established that an H-1B worker enters employment upon making themselves available for work or coming under the control of the employer. The court rejected the argument that work must commence with a client company for employment to begin.

The regulations state that an H-1B nonimmigrant is entitled to receive pay when they enter into employment, which occurs when they make themselves available for work or come under the employer's control.

Impact of Senate Resolution on Public Charge Rule

Recently, on May 17, 2023, the Senate made an important decision regarding the Public Charge Ground of Inadmissibility Final Rule, which came into effect on December 23, 2022. Using the authority granted by the Congressional Review Act (CRA), the Senate passed a resolution to disapprove of this rule. However, it's important to note that for the resolution to become law, it must also pass the House and be signed by the President. The House is expected to vote on and pass the resolution soon. Despite this progress, it's worth mentioning that the White House has already indicated that President Biden intends to veto the resolution. As a result, unless circumstances change, the 2022 Public Charge Rule will remain in effect.

Updates on Form ETA-9089 and Implementation in FLAG

The Department of Labor's Office of Foreign Labor Certification (OFLC) has provided an important update regarding the submission of the revised PERM form in the FLAG system. The deadline for submitting the form has been postponed to June 1, 2023. After May 31, 2023, at 6:59 pm (ET), OFLC will no longer accept new applications submitted through the legacy PERM system. Additionally, any previous versions of Form ETA-9089 and related forms will not be accepted after May 31, 2023, whether submitted electronically or via mail.

AILA DOL Committee continues to engage with OFLC on technical issues related to the new ETA Form 9089 in FLAG. One significant concern is linking an ETA Form 9141 prevailing wage determination created by a preparer outside of the FLAG network to an ETA Form 9089. OFLC acknowledges this concern and intends to address it by adding the ability to link PWDs outside of the network in the near future. Stay tuned for further guidance on the FLAG and OFLC announcements page for updates on when this feature will be implemented.

USCIS Adjustment of Status Filing Dates for June 2023

In June 2023, most employment-based visa categories will remain unchanged, while EB-5 India will retrogress. U.S. Citizenship and Immigration Services (USCIS) will accept adjustment of status applications from foreign nationals with a priority date earlier than the Final Action Dates listed in the State Department's June Visa Bulletin.

For family-sponsored filings, refer to the Dates for Filing chart in the Department of State Visa Bulletin. For employment-based preference filings, consult the Final Action Dates chart in the same bulletin.

CBP No Longer Requires Proof of COVID-19 Vaccination for Air Passengers

Effective from 12:01 am (ET) on May 12, 2023, the COVID-19 vaccination requirement for all airline and aircraft passengers arriving in the United States from foreign countries has been rescinded by CBP's Carrier Liaison Program. The President of the United States issued a Proclamation terminating the vaccination requirements outlined in the Presidential Proclamation Advancing the Safe Resumption of Global Travel During the COVID-19 Pandemic.

The Centers for Disease Control and Prevention (CDC) Amended Order Implementing Presidential Proclamation on Safe Resumption of Global Travel During the COVID-19 Pandemic will no longer be in effect. This change applies to flights departing to the United States from a foreign country on or after 12:01 am EDT on May 12, 2023. Noncitizen, nonimmigrant air passengers will no longer be required to show proof of full vaccination with an accepted COVID-19 vaccine to board flights to the United States.

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