Tag: Exemptions

  • Feds launch site for employers to pay controversial H-1B fee, clarify exemptions

    Feds launch site for employers to pay controversial H-1B fee, clarify exemptions

    Dive Brief:

    • The U.S. Treasury Department launched an online payment website for employers to pay President Donald Trump’s $100,000 fee on new H-1B visa petitions, according to an update last week from the U.S. Citizenship and Immigration Services.
    • USCIS said the fee applies to new H-1B petitions filed on or after Sept. 21 on behalf of beneficiaries who are outside the U.S. and do not have a valid H-1B visa, or whose petitions request consular notification, port of entry notification or pre-flight inspection. Payment must be made prior to filing a petition with USCIS, per the agency.
    • Separately, USCIS’ update clarified that the fee requirement does not apply to petitions requesting an amendment, change of status or extension of stay for noncitizens who are inside the U.S., if that request is granted by USCIS. If it is not granted, then the fee applies.

    Dive Insight:

    Trump’s proclamation announcing the H-1B fee left employers with plenty of unanswered questions. While Monday’s update provides some clarity, the policy’s future is still uncertain in part because business groups, employers, unions, lawmakers and other stakeholders oppose it.

    At least two lawsuits have been filed seeking to enjoin the fee proclamation — one by the U.S. Chamber of Commerce in Washington, D.C., and another by a group of plaintiffs in California. Both similarly alleged that the H-1B fee violates the constitutional separation of powers as well as the Administrative Procedure Act. The complaints also warned of negative effects on U.S. employers that depend on the H-1B program to attract skilled foreign workers.

    In a letter to Trump and Secretary of Commerce Howard Lutnick, a bipartisan group of congressional lawmakers agreed to the need for reform of the H-1B program while expressing concerns about the potential effects of the fee on U.S. employers’ ability to compete with their global counterparts for talent.

    “The recently announced H-1B visa changes will undermine the efforts of the very catalysts of our innovation economy — startups and small technology firms — that cannot absorb costs at the same level as larger firms,” the lawmakers wrote.

    Trump and the White House have said the fee is necessary to combat “systemic abuse” of the H-1B program by employers that seek to artificially suppress wages at the cost of reduced job opportunities for U.S. citizens. In addition to the fee imposed on new visa petitions, the administration issued a proposed rule to change its selection process for H-1B visas to be weighted in favor of higher-paying offers.

    USCIS’ guidance noted that the Secretary of Homeland Security may grant other exceptions to the H-1B fee in “extraordinarily rare” circumstances where:

    • A beneficiary’s presence is in the national interest.
    • No American worker is available to fill the role.
    • The beneficiary does not pose a threat to U.S. security or welfare.
    • Requiring payment from the employer would significantly undermine U.S. interests.

    The agency provided an email address to which employers could send requests for fee exemption along with supporting evidence.

    Employers planning to file for new H-1B visas should plan to pay the fee unless litigation results in some kind of change, Akshat Divatia, attorney at law firm Harris Sliwoski, wrote in an article Tuesday. Divatia noted that some of the criteria for exemptions outlined by USCIS may conflict with congressional design of the H-1B program, and that employers “should watch closely how the courts respond” to such arguments.

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  • Feds launch site for employers to pay controversial H-1B fee, clarify exemptions

    Feds launch site for employers to pay controversial H-1B fee, clarify exemptions

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    Dive Brief:

    • The U.S. Treasury Department launched an online payment website for employers to pay President Donald Trump’s $100,000 fee on new H-1B visa petitions, according to an update Monday from the U.S. Citizenship and Immigration Services.
    • USCIS said the fee applies to new H-1B petitions filed on or after Sept. 21 on behalf of beneficiaries who are outside the U.S. and do not have a valid H-1B visa, or whose petitions request consular notification, port of entry notification or pre-flight inspection. Payment must be made prior to filing a petition with USCIS, per the agency.
    • Separately, USCIS’ update clarified that the fee requirement does not apply to petitions requesting an amendment, change of status or extension of stay for noncitizens who are inside the U.S., if that request is granted by USCIS. If it is not granted, then the fee applies.

    Dive Insight:

    Trump’s proclamation announcing the H-1B fee left employers with plenty of unanswered questions. While Monday’s update provides some clarity, the policy’s future is still uncertain in part because business groups, employers, unions, lawmakers and other stakeholders oppose it.

    At least two lawsuits have been filed seeking to enjoin the fee proclamation — one by the U.S. Chamber of Commerce in Washington, D.C., and another by a group of plaintiffs in California. Both similarly alleged that the H-1B fee violates the constitutional separation of powers as well as the Administrative Procedure Act. The complaints also warned of negative effects on U.S. employers that depend on the H-1B program to attract skilled foreign workers.

    In a letter to Trump and Secretary of Commerce Howard Lutnick, a bipartisan group of congressional lawmakers agreed to the need for reform of the H-1B program while expressing concerns about the potential effects of the fee on U.S. employers’ ability to compete with their global counterparts for talent.

    “The recently announced H-1B visa changes will undermine the efforts of the very catalysts of our innovation economy — startups and small technology firms — that cannot absorb costs at the same level as larger firms,” the lawmakers wrote.

    Trump and the White House have said the fee is necessary to combat “systemic abuse” of the H-1B program by employers that seek to artificially suppress wages at the cost of reduced job opportunities for U.S. citizens. In addition to the fee imposed on new visa petitions, the administration issued a proposed rule to change its selection process for H-1B visas to be weighted in favor of higher-paying offers.

    USCIS’ guidance noted that the Secretary of Homeland Security may grant other exceptions to the H-1B fee in “extraordinarily rare” circumstances where:

    • A beneficiary’s presence is in the national interest.
    • No American worker is available to fill the role.
    • The beneficiary does not pose a threat to U.S. security or welfare.
    • Requiring payment from the employer would significantly undermine U.S. interests.

    The agency provided an email address to which employers could send requests for fee exemption along with supporting evidence.

    Employers planning to file for new H-1B visas should plan to pay the fee unless litigation results in some kind of change, Akshat Divatia, attorney at law firm Harris Sliwoski, wrote in an article Tuesday. Divatia noted that some of the criteria for exemptions outlined by USCIS may conflict with congressional design of the H-1B program, and that employers “should watch closely how the courts respond” to such arguments.

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  • Appeals Court Upholds DOL’s Authority to Use Minimum Salary Threshold to Determine Overtime Exemptions

    Appeals Court Upholds DOL’s Authority to Use Minimum Salary Threshold to Determine Overtime Exemptions

    by CUPA-HR | September 12, 2024

    On September 11, the 5th U.S. Circuit Court of Appeals issued a ruling in Mayfield v. U.S. Department of Labor that upholds DOL’s authority to implement a minimum salary threshold to determine exempt status under the Fair Labor Standards Act (FLSA) overtime pay requirements. While the ruling does not answer how other lawsuits challenging the Biden administration’s rule will be decided, the ruling is significant and could help other federal judges determine whether or not to strike down the Biden administration’s increased minimum salary thresholds.

    Background

    The case’s plaintiff, Robert Mayfield, filed a lawsuit against the Trump administration’s overtime rule in August 2022. In his lawsuit, he argued that the FLSA language on overtime exemptions only mentions a worker’s job-related duties and that implementing a salary threshold to determine exempt status exceeds DOL’s statutory authority. The Western District Court of Texas, a lower court where the lawsuit was originally filed, sided with DOL, stating that the agency has the statutory authority to implement the FLSA overtime minimum salary threshold. Mayfield appealed the decision to the 5th Circuit soon after.

    The Decision

    In its decision that sides with the Department of Labor, the 5th Circuit Court held that DOL may use a minimum salary requirement as part of its test for determining whether or not an employee qualifies as an executive, administrative and professional (EAP) employee exempt from the FLSA overtime pay requirements. Notably, the 5th Circuit Court argued that DOL does have statutory authority under the FLSA to use a salary threshold to “define and delimit the terms of exemption.”

    Though the decision allows for DOL to use a minimum salary threshold, the 5th Circuit Court did state that there is a limit to the power granted to DOL to do so. Specifically, the decision states that DOL may only use the minimum salary requirement to the extent that the salary threshold established in the regulations is a reasonable proxy for who is and who is not an EAP employee. They argued that DOL’s power to rely on proxy is not “unbounded” and that the agency “cannot enact rules that replace or swallow the meaning” of the FLSA’s terms that they seek to define.

    Looking Ahead

    Outside of the Mayfield case, there are three pending lawsuits in the Eastern District Court of Texas to challenge the Biden administration’s overtime final rule. That rule implements a two-phase approach to increasing the minimum salary threshold under the FLSA. The first increase took effect on July 1, increasing the minimum salary threshold from the current level of $684 per week ($35,568 per year) to $844 per week ($43,888 per year), and the second increase is set to take effect on January 1, 2025, increasing the minimum salary threshold again to $1,128 per week ($58,656 per year).

    The decision from the 5th Circuit does not have an immediate impact on the lawsuits challenging the Biden administration’s overtime rule, nor does it provide a definitive answer on how lower courts decide in those legal challenges. As such, the Biden administration’s July 1 salary threshold continues to be in effect,* and the second increase to the salary threshold is still set to take effect on January 1, 2025. CUPA-HR will keep members apprised of additional updates related to the FLSA overtime pay regulations.

    *A preliminary injunction to block DOL from enforcing the overtime final rule was placed for public employees in the state of Texas. Private institutions in Texas and all other institutions outside of Texas need to be in compliance with the July 1 salary threshold.



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  • New Instructions Clarify USCIS Fee Rule Reductions and Exemptions for Higher Ed – CUPA-HR

    New Instructions Clarify USCIS Fee Rule Reductions and Exemptions for Higher Ed – CUPA-HR

    by CUPA-HR | March 6, 2024

    On March 1, 2024, U.S. Citizenship and Immigration Services published updated forms and filing instructions for the I-129, Petition for a Nonimmigrant Worker and the I-140, Immigrant Petition for Alien Workers. These updates incorporate new fee calculations as outlined in the USCIS fee rule. Notably, the filing instructions state that institutions “of higher education, as defined in section 101(a) of the Higher Education Act of 1965” are eligible for the reduced fees and exemption from the Asylum Program fee.

    This clarification follows the issuance of a final rule by USCIS on January 31, 2024, which adjusted the fees for most immigration applications and petitions, resulting in significantly higher fees for most employment-based petitioners. However, due to concerns raised by stakeholders, including CUPA-HR and other higher education institutions, the final rule provided relief for nonprofit organizations in the form of fee reductions as well as an exemption from a newly introduced fee intended to fund the Asylum Program.

    In a previous blog post, CUPA-HR addressed the confusion stemming from the final rule’s reliance on the Internal Revenue Code’s definition of a nonprofit organization, particularly 26 U.S.C. 501(c)(3). This definition caused uncertainty among public universities and colleges, which, while tax-exempt, are not classified as 501(c)(3) entities. The preamble to the final rule suggested that the agency’s approach to defining “nonprofit” was designed to ensure that the primary types of organizations eligible for the American Competitiveness and Workforce Improvement Act’s fee reduction — specifically, educational institutions, nonprofit research organizations, and governmental research organizations — would also qualify for fee reductions and exemptions under this rule. However, the possibility of a strict interpretation of “nonprofit” might have left public universities and colleges facing increased fees.

    The updated filing instructions offer much-needed clarity on the fee reductions and exemptions, ensuring that institutions of higher education as defined by the Higher Education Act of 1965 will not be overly burdened by petitioner fees.



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