As published in the Immigration Daily on January 25, 2021
By this time last year, USCIS had already come out with the rules for employer registration for the new H-1B season along with the timetable. At the time of this writing, nothing has been sent by Washington on timing or procedure. It may well be because we have a new administration with a new DHS chief, Alejandro Mayorkas, awaiting confirmation, and no one is certain what the Biden policy will be. His appointment of Marty Walsh, the Boston mayor and affirmed champion of the working people and a former union leader, indicates that President Biden may not be as sympathetic in the H-1B arena as he is in other areas of immigration. Indeed, the White House fact sheet of January 20, 2021 explaining “The US Citizenship Act of 2021” stated as a goal that “The bill… incentivizes higher wages for non-immigrant, high-skilled visas to prevent unfair competition with American workers.”
A look at the H-1B midnight regulations of the Trump administration and their present state may give us an idea of what options and dangers may loom for new cap subject H-1B’s in the upcoming months. There were three related regulations:
- The regulation for high wages to be favored in the employer registration selection system, “Modification of Registration Requirement for Petitioners Seeking To File Cap-Subject H–1B Petition,” was published on 1/8/21 and slated to go into effect on 3/9/21.
- The regulation bringing back the Department of Labor (DOL) rule dramatically increasing wage levels, “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United “States,” was published on 1/14/21, and set to go into effect 60 days thereafter (3/15/21). Under the rule, DOL would gradually phase in the new wages over a period of a year and a half, with the first increase to take place on 7/1/21. For H-1B workers who are beneficiaries of approved I-140 petitions as of 10/8/21, the phase-in period for increased wages was extended to 3 ½ years.
- The DHS regulation, “Strengthening the H-1B Nonimmigrant Visa Classification Program,” bringing back the court rejected regulation in truncated form and only including the provision making end-user organizations file LCA’s and H-1B petitions (redefining the employer-employee relationship) was published as an advance copy on 1/15/21, still needs to be published in the Federal Register, and if published would not take effect for at least 180 days. (DOL acknowledged on 1/21/21 that the regulation is a nonstarter by withdrawing its supportive Office of Foreign Labor Certifications (OFLC) H-1B Program Bulletin and Wage & Hour Field Assistance Bulletin espousing DHS’s regulation as validating its own interpretation along with withdrawing a notice for publication in the Federal Register announcing and requesting public comments on the interpretation).
Under Biden Chief of Staff Ron Klain’s memo of January 20, 2021, stopping whatever midnight rulemaking could be withdrawn or paused by memo, all pending regulations were to be withdrawn and agencies instructed to consider postponing for 60 days regulations that had been published but not yet implemented. The shutdown memo has the following effects on the three regulations:
- As the first and second were published, the agencies must consider postponing them for 60 days since they have not yet been implemented, but whether they will be withdrawn depends upon the new administration’s views on the regulations.
- If the administration favors the first two regulations, they could go into effect as scheduled on 3/9/21 and 3/15/21 respectively under one of the memo’s exceptions to 60 days postponement. However, the second regulation would have no effect on this H-1B season as the raising of wage levels would not come into play until 7/1/21, which would be after this year’s H-1B season is over.
- The third regulation is definitely to be withdrawn under the Klain memo as it has not been published.
- The major questions lie with the first regulation. So far, there is seemingly no direction as to when H-1B season will begin or what the rules will be. While some lawyers believe that H-1B registration must begin on March 1st, that is not a magic date as such was just the date to start accepting registrations for 2020, the first year of implementation for the employer registration system. This year, registrations could begin on 3/15/21 or even 4/1/21, and USCIS would just have 15 or 30 more days of the backend of adjudication, e.g. instead of adjudicating a case on 9/2/21, it may adjudicate on 10/2/21.
There is also no guarantee that USCIS will use an employer registration system this year as it could revert to the former system of all petitioners submitting full H-1B packages in hopes of being selected, but the success of the registration program last year dictates otherwise.
The good news is that President Biden is much more balanced than his predecessor, and any changes should be analyzed, reviewed, and measured rather than produced by mercurial temperament. H-1B petitioners this year should have certainty concerning the OES wage system and stand unaffected by the attempted changes to the definitions of specialty occupation and employer-employee relationship. Indeed, the court victories against the second and third regulations provide H-1B practitioners with more arguments on these issues.
The first regulation’s shifting the odds of selection dependent upon an employer’s ability to pay higher wages to its H-1B workers should not be supported by this administration for many reasons, including the resultant stifling of innovation and promotion of discrimination against smaller sized organizations with specialty occupation positions to be filled, but without deep pockets to increase levels of pay like their larger sized competitors, e.g. large biotech companies willing to pay two or three times the going rate for researchers while smaller ones with equal or superior promise cannot reach that wage level, and so are unable to secure needed scientists, researchers, chemists, and the like.