Plans to raise the wages of H-1B professional foreign workers and employment-based green cards are indefinitely postponed, per the Biden administration, among other updates. The administration reconfirmed that proposed reforms to the H-1B visa program will be announced by the end of the year. New regulations allowing Form I-9 documents to be reviewed virtually and increases in filing fees for immigration-related matters are also pushed back, among other updates. See below for more updates on employment-based visas.

Plans for Prevailing Wage Postponed

The Department of Labor (DOL) announced raising prevailing wage rates or H-1B and PERM programs have moved to the long-term agenda of the agency. Historically, this is the first move when a proposal is being permanently shelved.

The Trump administration issued a final rule raising wages for H-1B visas and employment-based green card holders to take effect in November 2022. A federal judge vacated the rule. The Biden administration considered supporting the proposal but has now removed it from the DOL agenda.

 

Reforms to the H-1B Visa Program

U.S. Citizenship and Immigration Services (USCIS) continues to support amending some aspects of the H-1B visa program, originally proposed by the Trump administration. The updated proposal is scheduled to be published in December 2023. Per USCIS, the proposal includes:

  • Redefining the relationship between the H-1B employer and employee.
  • Updated employer site visit guidelines.
  • Clarification of rules for F-1 student visa holders waiting for a change of status to H-1B.
  • Describe requirements when an amended or new H-1B visa petition is required, including new work location or material changes to employment.

It is unclear if USCIS will address employers filing multiple applications for the same person, as was seen in the H-1B lottery process this year.

 

H-2 Visa Programs

Changes to the H-2A and H-2B temporary worker programs are expected to be announced this summer. The DOL plans to update prevailing wage rules for H-2B visas and enforce employer obligations. The H-2A temporary agricultural worker program will be amended to address working conditions and protections for farmworkers. The DOL and DHS proposed rules are scheduled to be released in August and September, respectively.

 

Filing Fee Increases Delayed

The final rule raising filing fees for immigration petitions and applications has been delayed to March 2024, per USCIS. Several significant filing fee increases for many employment-based immigration petitions and applications were proposed in January 2023. The fee increases were meant to address the high cost of processing asylum claims. USCIS relies on user fees for funding, rather than congressional funds. The increase in fees for employment-based visas would address the shortfall for asylum cases. COVID-19 greatly reduced immigration processing and related revenue. However, caseloads have since returned to pre-pandemic levels.

The previous fee update was in December 2016. At that time, a weighted average increase of 21% was announced. If the current proposed fee increase moves forward, it represents a weighted average increase of 40%. Employer feedback to the proposed prices noted the increased costs versus the quality of service USCIS has delivered with current fees.

 

Virtual I-9 Inspection

The final rule for Form I-9 employment eligibility verification is delayed to August. The U.S. Immigration and Customs Enforcement (ICE) policy may allow for options for the in-person review of employment authorization and identity documents. During the pandemic, ICE allowed for greater flexibility for the review of documentation, including email, fax, and videoconferences.

 

J-1 Rule Coming

Updates to the J-1 intern and trainee program from the State Department are expected in January 2024.

 

L Visa Plans Eliminated

Amendments to the L-1 regulations have been dropped by USCIS. Previously, the agency suggested a revision to the definition of specialized knowledge would be proposed, focused on the definition of ‘employer-employee relationship’ and ‘employment’. Wage requirements for the L-1 category were also considered. However, at this time, these efforts have been stopped.

 

If you have questions about these updates or any employment-based visa, contact us at ILBSG. Our team of expert attorneys works with our clients to ensure they get the right advice to maximize their odds of a successful outcome.

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