Regulatory Freeze May Delay Recent Regulations Impacting the H-1B Visa Program

President Biden’s Chief of Staff has issued a memo to executive agencies directing them to consider postponing the effective dates of published regulations that have not yet taken effect for 60 days. The purpose of the freeze is to allow the Biden administration time review any questions of fact, law, and policy the regulations may raise. During the 60-day pause, agencies may consider opening a new 30-day comment period to allow further public comments before the regulations move forward. If it is determined that the regulation raises substantial questions of fact, law or, policy, the Director of the Office of Management and Budget (OMB) must be consulted before further action is taken to move forward with the regulation. The OMB Director is also authorized to review pending forms revisions (referred to as information collections).

Importantly, this freeze has the potential to delay the implementation of the recently published regulation, Modification of Registration Requirement for Petitioners Seeking To File Cap-Subject H–1B Petitions. This 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, but may now be postponed to May 9, 2021 with the possibility that it will not apply to this year’s upcoming lottery process. H-1B wages may still be a topic of consideration as Biden’s immigration platform has previously included working with Congress to reform temporary visas to establish a wage-based allocation process.

Further, the Final Rule Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States may be postponed. 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 was 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 was set to take effect on March 15, 2021 with wage modifications beginning July 1, 2021. Now, the effective date may be pushed to May 15, 2021.

The Trump administration attempted to also finalize the Strengthening the H-1B Nonimmigrant Visa Classification Program regulation by publishing an advanced copy of the rule last week. It failed to be formally published in the Federal Register and will not take effect.

The memorandum is available here.

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.

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