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On October 8, 2020, two new Interim Final Rules were published in the Federal Register that are expected to impact JHU’s ability to sponsor H-1B temporary workers and may impact some individuals who JHU wishes to sponsor for permanent residency. These rules were issued without advanced notice; one was effective Thursday, October 8 and the other is effective 60 days from rule publication (December 7). Please find a very brief summary of each rule below. We understand that these rules are complex, and we are continuing to work through them and evaluate their likely impact on the scope and breadth of our nonimmigrant visa population and processing implications. This communication is meant to give you notice of these rules only. Given the time frame in which they have been issued and their potentially significant impact, we expect a continuing dialogue around these rules. We will update you as things develop. We also invite you to contact OIS with questions.

While we are current as of Thursday, October 8 in processing impacted immigration-related forms for our applicants, these rules will affect some future applications.

Department of Labor Rule: Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens

The Department of Labor (DOL) is amending Employment and Training Administration regulations governing the prevailing wages for employment opportunities that U.S. employers seek to fill with foreign workers on a permanent or temporary basis through certain employment-based immigrant visas or through H-1B, H-1B1, or E-3 nonimmigrant visas. Per DOL, the prevailing wage rate had been defined as the average wage paid to similarly-employed workers in a specific occupation in the area of intended employment. Specifically, DOL is amending its regulations governing permanent labor certifications and Labor Condition Applications to incorporate changes to the computation of wage levels under the Department's four-tiered wage structure based on the Occupational Employment Statistics (OES) wage survey administered by the Bureau of Labor Statistics.

While we cannot predict with certainty how this will impact individual cases, the anticipated end result will be significantly higher wage requirements for all new H-1B cases filed by employers including new H-1B employment, extensions of H-1B status, and amendments of H-1B employment. We are still evaluating the potential implications and impact this will have on our nonimmigrant visa population, and are in discussion with University stakeholders and our national associations. This rule is effective on the date of publication, Thursday, October 8, 2020.

Department of Homeland Security Rule: Strengthening the H-1B Nonimmigrant Visa Classification Program

The Department of Homeland Security (DHS), is amending certain DHS regulations governing the H-1B nonimmigrant visa program. Changes include, but are not limited to: DHS revision of the regulatory definition of and standards for a "specialty occupation" to better align with the statutory definition of the term according to DHS; added definitions for "worksite" and "third-party worksite"; a revised definition of "United States employer"; clarification for how U.S. Citizenship and Immigration Services (USCIS) will determine whether there is an "employer-employee relationship" between the petitioner and the beneficiary; a requirement for corroborating evidence of work in a specialty occupation; and codification of USCIS' H-1B site visit authority, including the potential consequences of refusing a site visit.

This rule is not expected to have as significant an impact as the above-mentioned DOL rule; however, the narrowed standards for a “specialty occupation” may impact some positions that JHU would normally sponsor for H-1B status. In addition, the requirement for “corroborating evidence” may increase the burden placed on JHU departments that wish to sponsor H-1B employees and, in some cases, increase the overall cost of sponsorship. This rule is effective after the 60-day comment period ends, on Monday, December 7.

OIS Operations:
The Office of International Services [OIS] will continue to accept and prepare H-1B petitions, and where the new DOL and DHS rule requirements can be met, we will continue to submit H-1B applications to USCIS. Where DOL and DHS rule requirements cannot be met, we will evaluate if any alternate immigration sponsorship options exist and advise accordingly. Please note, the OIS cannot make preliminary wage determinations, or speculate on possible wage requirements. Only with a completed H-1B sponsorship request can we perform the necessary wage analysis to support H-1B sponsorship.

We will provide an update as more becomes known of the impacts of these new rules. We also anticipate litigation will be filed against these rules, and will continue to monitor the legal process.

UPDATE:

On September 29, 2020, the U.S. District Court for the Northern District of California issued a nationwide preliminary injunction and stay on implementation of the 2020 final USCIS fee rule in its entirety. New fees and form versions associated with that rule that were to be required on October 2, 2020, as well as all other aspects of the rule, are now on hold.

If you have already submitted a check to the OIS in connection with a H-1B case in the new fee amount [$555], you will need to request and submit to the OIS a check in the amount of $460. PLEASE CONTACT THE H-1B ADVISOR HANDLING THE CASE TO CONFIRM DELIVERY ADDRESS FOR THE NEW CHECK AND FOR ANY QUESTIONS ABOUT THE STATUS OF THAT CASE.

Thank you for your patience and cooperation.

The following message was sent to F-1 students and J-1 exchange visitors on Friday, September 25.

 

On Friday, September 25, 2020, the U.S. Department of Homeland Security (DHS) published a proposed rule to eliminate duration of status (D/S) for F-1 students, J-1 Exchange Visitors, and their dependents. Under current regulations, F and J visa holders are admitted to the U.S. for “duration of status,” or the duration of their program as indicated by the expiration date on their Form I-20 or DS-2019. While in F and J status, individuals can be granted extensions of their I-20 or DS-2019 by the F-1 Designated School Official (DSO) or J-1 Alternate or Responsible Officer (ARO/RO) at their university, which increases the period of authorized stay in the U.S. (at JHU, all DSOs and ARO/ROs are located in OIS). The proposed rule seeks to eliminate duration of status and would replace it with a fixed period of admission for F and J visa holders. Some key proposed provisions of the draft rule are:

  • Individuals admitted in F or J status would be issued a Form I-94 with a fixed expiration date (we do not yet know exactly how this will work in practice)
  • Students and scholars who need additional time beyond the I-94 expiration date to complete their program objectives must file an Extension of Stay (EOS) request with USCIS using form I-539 (under current rules, extensions are handled by a university’s DSO or ARO/RO)
  • The F-1/F-2 grace period provided at the end of the student’s program would be shortened from 60 days to 30 days; the J-1/J-2 grace period will remain 30 days

Once again, this is a proposed rule, so no official changes have occurred yet. There is a 30-day public comment period on the proposal after which comments are reviewed by the government and a final rule is expected to be published. After taking into consideration the public’s comments on the proposal, it is possible that a final rule could incorporate changes and look quite different than what is currently being proposed. As always, we will apprise you of specific impacts if and when the final rule is issued. At this time, OIS will not change any current practices or processes for I-20 or DS-2019 document issuance based on these proposed regulations.

We are deeply concerned with the draft and are carefully reviewing its details. We anticipate submitting official comments for consideration by the government, and will continue to work with universities and associations throughout the U.S. to formally register serious concerns with this proposed rule on behalf of our international students and scholars.

Sincerely,

The Office of International Services

USCIS announced in the Federal Register that the fees for some USCIS forms will increase on October 2nd, including the fee for Form I-129 [Petition for a Nonimmigrant Worker]. When filed in connection with an H-1B application, the I-129 fee will increase from $460 to $555. The fee increase is expected* to go into effect on October 2, 2020*. H-1B petitions filed on or after October 2, 2020 must be accompanied by the new fee. In addition to the increased fee, USCIS also announced Premium Processing will take up to 15 business days, instead of the previous 15 calendar days. There is no increase in the Premium Processing fee at this time.

New H-1B requests will be subject to the new I-129 fee. Cases already in process with an OIS advisor may be subject to the new fee if the case is not complete and ready to file with USCIS by 09/30/2020. If your Department has submitted USCIS filing fees to the OIS in connection with an H-1B case, the OIS advisor assigned to the case will notify you if the new I-129 fee will be required. While we expect* the fee to increase on October 2nd, the American Immigration Lawyers Association [AILA] filed suit against USCIS challenging the fee increase. The OIS will provide further updates if USCIS announces a delay or suspension of this planned fee increase.

This message was sent on 9/1/2020 to all students in F-1 status who have a requested, pending or approved OPT authorization.

 

On Friday, August 28, SEVP notified schools that it will be mailing notices to OPT students who do not have employer information in SEVIS. The notice states:

Nonimmigrant students and designated school officials (DSOs) must remember to report employer information related to Optional Practical Training (OPT) in the Student and Exchange Visitor Information System (SEVIS). Without this information, students could be viewed as having failed to obtain employment and potentially be considered out of status for exceeding permissible periods of unemployment while participating in OPT.

The Student and Exchange Visitor Program (SEVP) is conducting a review of SEVIS records for OPT participants and is mailing notices directly to students who have not reported employer information and have exceeded 90 days of unemployment. The notice informs students of their lack of employer/employment information and provides an opportunity for them to update their records either through their DSO or directly through the SEVP Portal. If the student’s SEVIS record is not updated, SEVP will set the record to “terminated” to reflect the lack of employer information and the potential that the student may have violated their status either by failing to timely report OPT employment or by exceeding the permissible period of unemployment while on OPT.

 

Click here to view a copy of the draft notice. We do not know if the notice will be emailed in addition to sending it via regular mail.

 

ACTION NEEDED

If you are employed, check one of the following to see if your employer information is up-to-date:

· SEVP Portal

· Page 2 of your most recent form I-20

If your employer info is missing or outdated, update your employer info by doing one of the following. Please do not report employment info both ways, just choose one.

· Log into the SEVP Portal and update your employer info. [Students on STEM OPT cannot use the SEVP Portal to add new employment info]

· Log into iHopkins and complete the OPT Reporting Form under the F-1 Practical Training tab. Students on STEM OPT should complete the STEM OPT Reporting eForm.

 

If you are not employed, consider the following:

· Review reporting requirements for students on OPT and STEM OPT on the OIS website.

  • If you do not plan to use your OPT and/or cannot find employment, options may include: departing the U.S., transferring your F-1 status to another U.S. institution to begin a new academic program, or changing to another visa status within the U.S. If you depart the U.S. or change your visa status from within the U.S., please notify OIS by completing the OPT Reporting Form in iHopkins. Students on STEM OPT should complete the STEM OPT Reporting eForm.

· If your F-1 record is terminated by SEVP, you will lose your F-1 status immediately. There is no grace period following a termination.

 

There are several things that remain unclear:

· Is this a new on-going process or a one-time notice from SEVP?

· Will students on STEM OPT without employer info receive the same notice?

· Will students be informed if their F-1 SEVIS record is terminated by SEVP?

 

We hope this helps inform you about this government notice so that you continue to maintain valid F-1 status while on OPT.

Please contact OIS at ois@jhu.edu if you have any questions.

 

Sincerely,

Office of International Services