Which “new” Regulations Remain ?

There were 3 new regulations announced by the Trump Administration prior to their demise. They included:
1. A change to the way the H-1b lottery was conducted to emphasize level of pay
2. A change to the DOL methodology for setting prevailing wages using the OES
3. A change to the definition of employer-employee

Last week, the Biden Administration issued a regulatory freeze, commonly done when a new Administration takes over so they can review what is commonly referred to as midnight regulations. Relative to the 3 regulations referenced above, this freeze means that the change to the employer-employee definition is dead. The DOL has already withdrawn its interpretive memo which was to accompany the new USCIS rule. (see our blog post from 1-22-2021) As for the change to the DOL methodology in setting OES wages, the freeze means a 60 day review and possible changes or a complete withdrawal. Please note that the new wages were not to take effect until July 1, 2021 so regardless of what happens, the upcoming H-1b cap lottery season should not be impacted. There also remains pending Federal litigation on this rule. The future of the 1st announced regulation favoring Level 4 wages in the lottery selection and the all but guarantee that Level 1 registrations would not be selected, it is not clear what the White House may do. As part of the proposed comprehensive immigration bill which was sent to Congress last week, the White House released a Fact Sheet that outlined the broad principles of the Biden Bill and they state a desire to promote “higher wages for non-immigrant, high-skilled visas” This may be an indication that they support a change to the H-1b lottery selection process. We expect to have more definitive information as the H-1b lottery draws closer.

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