On January 20, 2021, President Biden issued a series of executive orders, with several immediately impacting immigration. As expected, President Biden issued orders to preserve and fortify DACA, as well as lifting President Trump’s “Muslim ban.”  But in a move which should bring much needed relief for ILBSG’s clients engaged in the H-1B program, President Biden also issued a memorandum for the heads of executive departments and agencies instituting a regulatory freeze pending review. What this means is that all rules currently pending at the Federal Register that have not yet been published must be immediately withdrawn. For those that have been published, but not yet taken effect, President Biden has recommended that federal agencies consider postponing the effective date for 60 days (until March 21, 2021) to allow for additional review.

On January 15, 2021, a modified version of the “Strengthening the H-1B Nonimmigrant Visa Classification Program Final Rule” was sent to the Federal Register, amending the employer-employee relationship definition to require the end client to file its own LCA and H-1B petition as a secondary employer. Since this modified version of the rule has not yet been published, it will now be withdrawn. This is very good news for H-1B employers in the IT industry, as it is very unlikely that end clients would be willing to assume liability as secondary employers for H-1B beneficiaries.

Further, on January 14, 2021, the DOL issued a final rule to increase H-1B wages, by recalculating the prevailing wages based on increased percentiles (Level 1 moving from 17th percentile to 35th, Level 2 from 34th percentile to 53rd, Level 3 from 50th percentile to 72nd percentile, Level 4 from 67th percentile to 90th). This was the second version of this rule, with the first being struck down in December 2020 in federal court. Since this second version has already been published, it is likely the effective take will now be extended to March 21, 2021, while the new administration reviews. As the Biden Administration is recommending additional comment periods and that the agencies review any requests for reconsideration, it is possible this rule could be modified or even withdrawn. Only time will tell.

Finally, the “H-1B Wage Selection Final Rule” published on January 8, 2021 will also now likely be delayed until March 21, 2021, per the White House’s recommendation. This rule modifies the H-1B Cap so that selection is based on the wages offered rather than a random lottery, with priority given to Level IV registrations first. As such, the delay of this rule will also likely provide ILBSG’s clients relief, as the new March 21, 2021 effective date would mean the rule is not in effect for the upcoming registration period, anticipated to begin on March 1, 2021. Since this rule will greatly impact the chances of being selected for those who cannot register using Level IV wages, any delay or withdrawal of this rule would be welcomed news.

We will continue to post updates regarding any further action taken by the agencies to delay the effective dates of any currently pending rules. It is important to understand that while the White House’s memorandum formally recommended delaying the effective dates of any pending rules, ultimately official agency action is required to do so.

In the coming days, as we get further into the Biden Administration, we will have a clearer picture of what he plans to do with the H-1B program. President Biden has been clear that immigration is one of his highest priorities, so we anticipate swift action in this area. We will continue to update our clients on any new developments in this area.

 

 

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