As ILBSG reported earlier, the Biden Administration ordered a freeze on regulatory action, recommending a 60-day delay in the effective date of currently pending rules. Rules that had not been published yet were ordered to be withdrawn altogether.
In accordance with the order, the Department of Labor has officially withdrawn the revised version of the “Strengthening the H-1B Non-immigrant Visa Classification Program Final Rule,” which required end clients to file H-1B petitions as secondary employers. This is great news for H-1B employers.
The Department of Labor also pulled the final H-2A rule, which would amend certification requirements for agricultural work to be performed by temporary foreign workers and require online filing. This rule was released as a last-minute effort under the Trump Administration just last Friday.
In light of the Biden Administration’s freeze on new rules, the Department of Homeland Security and the U.S. Justice Department pushed back the effective date for the new asylum rule, which prevents certain individuals from seeking asylum over public health concerns. Originally published in the Federal Register in December, the rule has been postponed for 60 days pursuant to the executive order, to provide additional time for the current administration to review.
Notably, the effective date of two currently published rules regarding changes to the H-1B program have not yet been postponed pursuant to the order. As indicated in our earlier announcement, the 60-day postponement was recommended by the White House, but does require official agency action. The two rules currently slated to go into effect include a rule modifying the H-1B cap to a wage based system rather than a random lottery, as well as a rule increasing the required H-1B wages by modifying the percentiles used to calculate the wage levels. It is expected these rules will be similarly postponed pursuant to the order, but this has not yet been officially announced by the agencies. ILBSG will continue to post updates on these developments, as more rules are postponed.
It remains uncertain whether the upcoming FY 2022 Cap will include a registration/selection process and whether this process will be wage-based or involve a random lottery. USCIS’ website has yet to announce the start date for the registration period, although it is anticipated to be March 1, 2021, similar to last year. It is likely that USCIS will not make any announcements regarding the registration process until there is an official decision regarding whether the H-1B cap will be modified to become a wage-based system and, if so, whether it will be in effect for this year’s cap season or delayed until the FY 2023 Cap.
ILBSG advises clients to continue to prepare for the registration period as usual, until we have any further updates regarding the proposed changes. ILBSG is currently accepting registrations on the MyEsq portal.
For any questions regarding what to expect from this year’s H-1B Cap, please reach out to an ILBSG attorney today.
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