Summary of 2020 H-1B Rule Changes and Current Status Updates

February 24, 2021 § Leave a comment

Close to the end of its term, the former Trump Administration had attempted to enforce a series of H-1B rules that had the potential to drastically impact H-1B employers and employees.  On October 6, 2020 the Department of Labor (DOL) and the Department of Homeland Security (DHS) announced two interim final rules which would, among other restrictions, significantly raise minimum wage requirements and limit eligibility for prospective H-1B employers and employees. Both rules have since then been challenged in court, and on December 1, 2020 a federal judge in California blocked both interim final rules, ruling that the Trump administration did not have “good cause” to issue them without a notice and comment period.  On January 14, 2021, DOL republished its modified final rule on the prevailing wage increase, with the rule set to take effect on March 15, 2021 (although there is now a pending proposal by DOL for the rule to be delayed until May 14, 2021).  The rule contains a phased implementation plan in which wage level adjustments would not begin until July 1, 2021.  A third H-1B rule, announced in November 2020 that was supposed to go into effect in March 2021, was designed to replace the H-1B lottery system with a wage-based selection system under which H-1B candidates with higher salaries would receive selection priority.  This rule has now been delayed until December 31, 2021. 

Background and Current Status

  • Department of Labor Prevailing Wage Rule (“Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States”).  The rule had gone into effect in October 2020 but was initially struck down in December 2020.  DOL republished a modified rule in January 2021, set to go into effect in March 2021, pending a further proposal by DOL to delay its effective date for 60 days in compliance with the Biden Administration’s request to further review the rule.  The rule will over time dramatically raise the minimum required wages for all visa categories that require labor certifications, including H-1B nonimmigrant specialty occupation visas and EB-2 and EB-3 permanent employment-based visas.  The new wage rates are set to be implemented gradually over the period between July 2021 and June 2022, with the full prevailing wage levels becoming fully effective starting on July 1, 2022.  The new rates will reflect a significant increase from the current rates, up to a 90% increase. 
  • Department of Homeland Security’s H-1B Rule (“Strengthening the H-1B Nonimmigrant Visa Classification Program”).  The rule was set to go into effect on December 7, 2020 but was struck down on December 1, 2020.  The rule had sought to be more restrictive with H-1B employers and employees. H-1B candidates would need to possess an educational background that is more specific to the H-1B position such that, for instance, a candidate for an accounting position would not qualify if his/her degree was in a more general subject such as mathematics.  The rule also sought to limit the amount of H-1B time for an employee placed at a third-party job site, from three years down to one.  In conjunction with this rule, DOL had previously published bulletins, later withdrawn, that would have required both an H-1B employer (e.g. a staffing company) placing an H-1B worker with a secondary employer, as well as the secondary employer, to both file Labor Condition Applications (LCAs) with DOL as well as file H-1B petitions with the United States Citizenship and Immigration Services (“USCIS”). All H-1B petitioners must file LCAs; therefore, some H-1B workers could have multiple, simultaneous LCAs and petitions.  Under current rules applicable to H-1B applications involving a job placement at a third-party worksite, the primary employer would serve as the H-1B worker’s employer for payroll and tax purposes, while the secondary employer would manage the worker’s day-to-day work. However, secondary employers have so far not been required to file LCAs or H-1B petitions.
  • USCIS H-1B Lottery Rule (“Modification of Registration Requirement for Petitioners Seeking To File Cap-Subject H-1B Petitions”). This third rule would have eliminated the H-1B visa lottery and prioritized H-1B petitions in which H-1B workers would receive higher wages.  USCIS would then select H-1B petitions based on salary-level, starting with the highest and working down.  Originally published on January 8, 2021 and set to be effective on March 9, 2021, this rule has now been delayed to allow for notice and comment and is set to take effect on December 31, 2021.  The H-1B lottery system will remain in place this year.  On February 2, 2021, USCIS announced that the initial registration period for the Fiscal Year 2022 H-1B cap will open at noon (ET) on March 9, 2021, and will run through noon (ET) on March 25, 2021. During this time, petitioners and representatives can fill out petitioner and beneficiary information and submit their registration.

News Updates (01/28/2021)

February 2, 2021 § Leave a comment

January 27, 2021: The Biden administration has ended former President Donald Trump’s “zero-tolerance” policy, which provided the underpinnings for family separation by seeking to prosecute every migrant who crossed the border without authorization.

January 27, 2021: Fact Check: Ohio Rep. Jim Jordan claimed on Facebook and Twitter on Saturday that Biden issued a new order to release “all” undocumented immigrants. Similarly, Jordan said in a Monday interview with Fox News host Maria Bartiromo that Biden “has decided he’s going to release 14,000 illegals.” Jordan’s source for these assertions was a viral article on conservative website Breitbart News–which has been shared tens of thousands of times on Facebook alone–about an email sent on Thursday morning by an ICE official in Houston. The email included the words “release them all, immediately.” But Breitbart and then Jordan took the words way out of context.

January 26, 2021: A federal judge on Tuesday barred the U.S. government from enforcing a 100-day deportation moratorium that is a key immigration priority of President Joe Biden.

January 21, 2021: The White House has issued a memorandum asking federal agencies to halt the regulatory processes for several last-minute immigration rules and policies issued under the Trump Administration. The freezes are for 60 days (through March 21), to allow the Biden Administration to review the proposed rules from the previous government. These included the rule to replace the annual H-1B random cap selection (lottery) process with a salary-based selection process, the final wage rule, and the change in the employer-employee definition and requirement cast on clients of IT service companies and staffing companies to file H-1B visa applications and labour condition applications.

January 21, 2021: CDC order requiring a negative pre-departure COVID-19 test or documentation of recovery from COVID-19 for all airline or other aircraft passengers arriving into the United States from any foreign country, effective 1/26/21.

January 20, 2021: On his first day in office, President Biden announced his plans to send a bold immigration bill to Congress in the coming weeks. The bill includes four key components:

  • An eight-year pathway to citizenship for all 11 million undocumented immigrants.
  • Eliminating the three- and ten-year bars and expanding legal immigration.
  • Expanding existing immigration channels.
  • Untangling immigration enforcement from comprehensive solutions.

However, Roll Call reports that the bill faces a difficult path in the Senate as several Republican senators have called the plan “mass amnesty” and “far too radical.”

January 20, 2021: President Biden issued an executive order revoking prior presidential actions that sought to exclude undocumented immigrants from the apportionment base following the 2020 census. The order directs the Commerce Secretary to ensure that the apportionment base and state-level tabulations include all inhabitants.

January 20, 2021: President Biden issued proclamation 10141 “Ending Discriminatory Bans on Entry to the United States” revoking Executive Order 13780 of March 6, 2017; Proclamation 9645 of September 24, 2017; Proclamation 9723 of April 10, 2018; and Proclamation 9983 of January 31, 2020. The proclamation directs the DOS secretary to direct embassies and consulates, consistent with applicable law and visa processing procedures, including any related to COVID-19, to resume visa processing in a manner consistent with the revocation of the executive order and proclamations specified.

January 20, 2021: On 1/20/21, President Biden issued Executive Order 13993 “ Revision of Civil Immigration Enforcement Policies and Priorities” revoking Executive Order 13768 of January 25, 2017, Enhancing Public Safety in the Interior of the United States, and directing the DOS Secretary, the Attorney General, the DHS Secretary, and other government officials to review any agency actions developed pursuant to Executive Order 13768 and to take action, including issuing revised guidance, as appropriate and consistent with applicable law.

January 20, 2021: President Biden issued a proclamation terminating the national emergency declared by Proclamation 9844, and continued on 2/13/20 and 1/15/21. The proclamation directs officials to pause work on construction on the southern border wall and to develop a plan to redirect funds and repurpose contracts.

January 20, 2021: Acting DHS Secretary Pekoske issued a memorandum directing DHS components to conduct a review of immigration enforcement policies, and setting interim policies for civil enforcement during that review. Beginning 1/22/21, DHS will pause removals of certain noncitizens ordered deported for 100 days.

**Update as of 01/27/2021: The moratorium on deportations has been barred by a federal judge (see January 26 update).

January 20, 2021: President Biden issued a memo deferring through 6/30/22, the removal of any Liberian national, or person without nationality who last habitually resided in Liberia, who is present in the U.S. and who was under a grant of DED as of 1/10/21. The memo also allows for continued employment authorization.

January 20, 2021: DHS announced that it is suspending new enrollments in the Migrant Protection Protocols (MPP) Program and will cease adding individuals into the program effective 1/21/21. DHS advised current MPP participants to remain where they are, pending further information.

January 20, 2021: President Biden issued a memorandum directing the DHS Secretary, in consultation with the Attorney General, to take all actions he deems appropriate, consistent with applicable law, to preserve and fortify DACA.

January 19, 2021: CBP issued a notification of the continuation of temporary travel restrictions limiting travel of individuals from Mexico and Canada into the United States at land ports of entry along the United States-Mexico-Canada border through 2/21/21 due to COVID-19.

January 19, 2021: (Former) President Trump issued a memorandum directing the DHS and DOS Secretaries to take action to defer, with certain exceptions, for 18 months the removal of any Venezuelan national, or individual without nationality who last habitually resided in Venezuela, who is present in the U.S. as of 1/20/21.

January 18, 2021: A district court judge issued a nationwide stay of the effective date of the December 18, 2020, EOIR final fee rule and a preliminary injunction to enjoin most of its implementation. The rule was set to go into effect January 19, 2021. Accordingly, fees will stay the same for BIA appeals from IJ decision (EOIR-26), BIA appeals from decision of DHS officer (EOIR-29), BIA motions to reopen, applications for LPR cancellation (EOIR-42A), applications for non-LPR cancellation (EOIR-42B), and applications for suspension of deportation (EOIR-40).

January 14, 2021: A district court granted a temporary restraining order and preliminary injunction halting the implementation of a final rule regarding procedures for individuals who apply for asylum and withholding of removal, which was set to go into effect 1/15/21.

USCIS: Delays in Biometric Appointments

January 20, 2021 § Leave a comment

January 2, 2021: The Miami Herald reports that more than a million immigrants in the U.S. who have applied for citizenship through naturalization, adjustment of status, and other benefits have been waiting for their biometric services appointment at a local Application Support Center to provide their fingerprints, photograph, and/or signature. Due to COVID-19, USCIS canceled in-person services at its offices between March and June of last year, and there have been subsequent restrictions after opening to mitigate the spread of COVID-19. Given these challenges, when authorized by law, USCIS will be reusing previously collected biometric data to conduct background and security checks.

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Garland Selected as U.S. Attorney General

January 20, 2021 § Leave a comment

January 6, 2021: Incoming president Joseph Biden has selected Merrick Garland, Chief Judge of the U.S. Court of Appeals for the District of Columbia Circuit and former Supreme Court nominee, as U.S. attorney general.

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USCIS Modifies H-1B Selection Process

January 20, 2021 § Leave a comment

January 8, 2021: U.S. Citzenship and Immigration Services (USCIS) on Thursday announced that it will modify the selection process for H-1B visa, giving priority to salary and skills, instead of the current lottery procedures. The final rule to be published in the federal register on January 8, 2021. The final rule will be effective 60 days after its publication in the Federal Register. The next H-1B visa filing season is slated to start on April 1. Emerging reports underline that the incoming presidential administration of Joe Biden could place it on hold and also repeal it under the Congressional Review Act.

This new selection process will have a devastating effect on foreign students as most qualifying foreign students are sponsored for Level 1, H-1B positions. The USCIS claims that the changes promulgated in the Final Rule will not affect foreign students because they will have time during their OPT status to gain experience taking them to a higher wage level. However, only STEM students may qualify for three years of OPT. All other foreign students may qualify for only one year of OPT. Even students with some experience and master’s degrees, who could qualify for Level 2 positions are not likely to stand a chance. The changes seem to be drafted to have a maximum effect on level 2 positions as more than 50% of the H-1B petitions are filed for this level of workers.

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