Biden Administration Blocks Implementation of Revised H-1B Specialty Occupation, DOL Wage Level Increase and H-1B Cap Wage Priority Rules

Among the many first-day actions taken by the new Biden administration was to immediately put a block (or delay) to some of the last-minute employment-based immigration rules which were sought to be rushed by the prior administration.

In a January 20, 2021 memo, White House Chief of Staff Ron Klain directed in part, that (a) all rules pending at the Federal Register that have not been published must be immediately withdrawn and (b) agencies must “consider” postponing the effective dates for regulations that have been published, but not yet taken effect, for 60 days from the date of the memorandum.

Revised (Second-Attempt) H-1B Specialty Occupation/Employer-Employee Relationship Rule Blocked

As a result of the memorandum, the modified version of the Strengthening the H-1B Nonimmigrant Visa Classification Program Final Rule sent to the Federal Register on January 15, but not yet published, will be withdrawn.

As a reminder, this revised rule was another attempt to by the prior administration to introduce severe restrictions on the H-1B program; an initial rule was introduced in October 2020 (see our alert) and subsequently blocked by courts in December 2020 (see our alert).

As the two bulletins clarifying filing requirements for LCAs by secondary employers and on H-1B program obligations for common-law employers published by the Department of Labor on January 15, 2021, rely on the finalization of the DHS Rule, it is likely that they will be withdrawn by DOL as well.

Revised (Second-Attempt) Wage Level Increase Rule Delayed; Expected to be Blocked

On January 14, 2021, DOL issued a final rule which adopts, with changes, the interim final rule published in October (our alert) amending the regulations governing permanent labor certifications and Labor Condition Applications to incorporate changes to the computation of prevailing wage levels. The rule was set to take effect on March 15, 2021; however, the effective date of the rule is being extended pursuant to the Biden administration new rule freeze of of “midnight regulations” (i.e. those issued since the election but not yet effective) for 60 days.

H-1B Cap Lottery Wage Selection Rule Delayed; Expected to be Blocked

Similarly, the January 7, 2021 final rule seeking to change the way the H-1B cap lottery allocations are made based on wage levels is also going to be delayed. The rule was published in the federal register but had not yet become effective and, as a result, will be delayed pending further agency review.

Busy Period Ahead; Stay Tuned for Updates as We Closely Follow Developments by the Biden Administration

We expect a very busy period ahead as the Biden administration reviews and deals with multitude of Trump executive orders, rules and related litigation in various stages. We will follow closely and provide updates and alerts on rules impacting employment-based immigration and will do our best to provide guidance and updates during what is certain to be a confusing transition period.

Conclusion

Our office will continue monitoring related developments and provide updates.    Please do not hesitate to contact us if we can be of any help in preparing or otherwise assisting with this kind of petitions.    Also, please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics