Today, a Federal Judge struck down both the new H-1b regulation which was to take effect on 12-7-2020 and the new DOL regulations which took effect back in October. A link to the decision will be provided as soon as it is made available. As a practical matter, we do not know how long it will take the DOL to revert back to the prior system or to re-open PWD’s that may have been issued while the new regulations were in effect. We also, do not know if the Trump Administration will file an appeal during this lame duck period. We will update as developments occur.
Author: Mike Hammond
We are only a little over a week away from the new H-1b regulations taking effect. On Mon of this week, oral arguments were heard in the Chamber of Commerce vs. DHS et al in the Federal District Court for Northern California. The Chamber along with a number of other business groups are seeking a preliminary injunction blocking the new regulations from taking effect. The reports from multiple sources with information regarding the content presented at the oral argument was that the Chamber’s position seemed very strong while the government’s position seemed weak on both the facts argued and the law required. Forbes published a summary as did Law360. see links embedded. A summary of the litigation in general is available from the Chamber. A ruling can be issued any day. We will update you as developments occur.
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December Visa Bulletin
On Friday, the Department of State (DOS) released the December Visa bulletin and the only major change was that the India EB3 Dates for Filing Chart retrogressed by a full year to Jan 1, 2014. As a practical matter, this means that if you are India EB3, and have a priority date in 2014, you only have the remainder of this week to file your I-485. Final Action dates moved forward 4 mos. for both India and PRC EB1; others categories from those countries inched ahead; and all other countries and categories remained current. The USCIS later announced that they will accept I-485 filings in Dec. based upon the Dates for Filing chart.
The Department of State (DOS) announced last week that they would be resuming some routine visa services as COVID-19 conditions permit. This resumption should allow more appointments to be scheduled and the resumption of 221g reviews.
As of this writing, the election is not yet settled but, we thought it may be helpful to explore a bit about what we may see over the next 4 years if Biden is elected. In sum, we expect to see a quick reversal of many if not all of the Trump immigration policies. Reversing regulations is not as simple as a stroke of the pen. We expect the Biden White House to follow the regulatory procedures so some changes may take some time. Federal litigation that is pending may be immediately impacted as a Biden Administration is not expect to defend the regulations improperly promulgated. The Biden web-site provided a broad overview of his immigration philosophy recognizing the great value that international talent brings to the U.S. Check it out here.
Prior to the election in 2016, many people speculated that President Trump would be a friend of legal immigration, often citing his pro-growth business statements, his personal use of many legal immigration programs for his own businesses, and noting that all of his public statements were aimed at curbing illegal immigration. The last 4 years have shown those people that they were very wrong. The facts are that Trump has enacted multiple policies that have been designed to curb and have often completely prevented legal immigration. International cos. seeking to merely transfer its own workers into the U.S. have seen policies and interpretations designed to discourage and prevent global mobility. U.S. employers seeking to hire international talent have seen multiple policies and Service Center interpretations designed to prevent access to international talent, often forcing jobs and projects overseas. Most recently, the White House has announced a series of new policies designed to make it difficult if not impossible for international students graduating from US graduate schools to enter the US job market thereby impacting the talent pipeline for many years to come. If you don’t like history as your guide for what another 4 years would look like, the Trump campaign has announced that one of their primary goals for a 2nd term is to “cut work visas” and further restrict legal immigration. The economic impact of these attacks are significant. A number of economic studies have reviewed the positive economic impact of H-1b workers and recently, the Brookings Institute released a study regarding the economic loss from Trump’s Visa Ban. No one should act surprised this year as you know what you are voting for !
The White House has released proposed regulations that would change the H-1b selection from a random lottery which prioritizes US Masters and higher level graduates to a ranking system based upon salaries. This would all but eliminate entry level positions and new grads from being able to obtain an H-1b visa. This would also significantly impact rural areas where wages are not as high and prioritize the issuance of visas to the Coasts. Many international students come to the US to obtain a US graduate school degree as a stepping stone toward entering the US labor market with an h-1b visa. This new proposal would all but eliminate that career path and make it less desirable to be a US student. A copy of the proposed regs can be found here. There will be a 30 day comment period following the publication of the proposed regs in the Federal Register.
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November Visa Bulletin
At long last, the Department of State (DOS) finally released the November Visa Bulletin to cheers in the homes of immigrants and the offices of immigration attorneys. The dates in the Dates for Filing chart remained the same and the Final Action Date chart had forward movement in several categories. The cheers grew louder when shortly thereafter, the USCIS announced that it would accept I-485 filings in November using the Dates for Filing chart essentially keeping the filing window open at least another month. The limited forward movement for India EB2 (3 weeks) indicates that those considering downgrading to EB3 but, waiting to see the forward movement of EB2 should move forward with I-140 downgrade filings in November.
For international IT workers on H-1b visas, you are not alone in being attacked. The Trump Administration has recently also gone after J-1 physicians, most working in underserved and rural areas in the U.S. by proposing new regulations which would make it harder to renew their visas. The comment period on these proposed regulations ended on Oct. 26, 2020 meaning that they could be implemented at any time. A copy of the proposed regs can be found here.
Late yesterday, the U.S. Chamber of Commerce along with a host of other businesses, trade associations, universities and research labs filed a Federal lawsuit against both the DOL and the DHS challenging the recent regulations which both published last week, significantly impacting the employment of high-skilled immigrants. The lawsuit alleges procedural defects in the promulgation of the regulations and also substantive issues in the content. A summary of the complaint can be found here.