Last-Minute Immigration Regulations Impacting Employment-Based Immigration
Although President Trump has entered his last week in office, his administration has continued to move forward with the following last-minute immigration regulations aimed at employment-based immigration:
Presidential Proclamation 10131 of December 31, 2020: The Presidential Proclamation, which previously suspended the entry of H and L nonimmigrants in light of the COVID-19 pandemic, was extended to March 31, 2021.
Modification of Registration Requirement for Petitioners Seeking To File Cap-Subject H–1B Petitions: A Final Rule was issued to modify the H-1B lottery process for petitions subject to the cap based on salary offer, rather than a random selection. This rule is set to take effect on March 9, 2021 and would impact this year’s upcoming lottery if allowed to proceed.
Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States: This rule was previously attempted as an Interim Final Rule, skipping the notice and comment requirement, and was blocked from taking effect as a result of litigation. A new version has been issued as a Final Rule to increase the wages associated with the four prevailing wage levels used for Labor Condition Applications and PERM Labor Certifications. This rule is set to take effect on March 15, 2021, but would not modify the wages until July 1, 2021 if allowed to proceed.
Strengthening the H-1B Nonimmigrant Visa Classification Program: An advance copy of the final rule to change the definition of the employer-employee relationship for H-1B petitions is expected to be published in the Federal Register soon and would take effect 180 days thereafter if allowed to proceed. This rule was previously attempted as an Interim Final Rule, skipping the notice and comment requirement, and was blocked from taking effect as a result of litigation. A new version is expected to be issued as a Final Rule requiring so-called “secondary employers” to submit H-1B petitions on behalf of H-1B workers who are not their employees, simply because they are placed at their facilities.
The Department of Labor issued clarifying guidance on January 15th to correspond with the planned publishing of the Strengthening the H-1B Nonimmigrant Visa Classification Program final rule. This guidance is set to take effect July 14, 2021 and would require so-called “secondary employer’s to also submit LCAs for H-1B workers who are not their employees but are placed at their facilities.
Whether any of these regulations will ultimately take effect will depend on President-elect Biden. The Biden-Harris White House is expected to sign an executive order on January 20th halting or delaying any “midnight regulations” such as these that have not yet gone into effect. The freeze is expected to apply to both regulations and also guidance documents.
By: Emily Neumann
Emily Neumann is Managing Partner at Reddy & Neumann, P.C. with 15 years of experience practicing US immigration law providing services to U.S. businesses and multinational corporations. Emily has been quoted in Bloomberg Law, U.S. News & World Report, Inside Higher Ed, and The Times of India on various hot topics in immigration. She is a member of the American Immigration Lawyers Association and Society for Human Resource Management.