The USCIS has announced that the proposal to select H-1b lottery winners by wage level has been delayed until the end of this year to give the Administration time to review and assess the policy change. For this year’s H-1b cap lottery, FY 2022, the selection will remain random.
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 The DOL has already withdrawn its interpretive memo which was to accompany the new USCIS rule.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.
In a victory for legal immigration and particularly staffing employers, the DOL announced today that it was withdrawing its policy memo issued last Fri., which imposed additional requirements on staffing employers and their customers.
On this day, when the legal immigration world should be celebrating an incoming President that, at the very least, will not be anti legal immigration, we are still reading and trying to understand the implications of the new rules announced in the past week. Here is a link to a great summary from our friend Stuart Anderson. Many of the new rules target healthcare and IT occupations and employers. We will provide updates as actions are taken by President Biden.
And you thought he was done. Not even close. When your goal is to destroy legal immigration and make it out of reach for everyone but, the richest, you keep fighting to the end and that is exactly what the Trump Administration is doing. Today, the DOL released in Final Rule format the rule they had released in interim final format in Oct. The new rule will go into effect in 60 days but, the new wages will not be released until July 2021 and there will be a phase-in period. If you recall, that rule was struck down by multiple Federal Courts due to a complete failure to follow the correct legal procedures and the substance of the rule was criticized relative to its faulty assumptions, poor methodology, and math. The DOL “considered” the public comments, in part pointing out the absurdity of having some entry level wages set at $208,000/year, reviewed the decisions from the Federal judges that ruled against them and then dismissed it all and re-issued a very similar rule. To their credit, they did correct some of their math errors. The new methodology sets the wage levels at the 35th,53rd,72nd, and 90th percentiles. A number of the Plaintiffs who pursued federal lawsuits over the interim final rule have already announced that they will be suing again. There is also an expectation that the Biden Administration will take a look at all of the regulations rushed through by the Trump Team so this may all be moot.
The USCIS has issued an update letting its stakeholders know that we can expect delays in the issuance of receipt notices. (A more obvious statement could not be made as we are waiting on receipts from filings made 3+ months ago) Relative to I-485 and I-765 receipts, the USCIS stated that we can expect “significant delays”. The communication did not give any estimate as to when they will once again be able to provide receipts in a timely manner but, did indicate they were working extra hours to handle all of the filings. Our office and the immigration bar at large has experienced not only delays by the lockbox but, also a significant number of inaccurate rejections. The lockbox facilities are not fully staffed by trained USCIS employees which may be part of the problem.
Update as of 1-30-2021 Per information reported by the USCIS to AILA
Dallas Lockbox: 415,000 applications in the backlog post October 29, 2020 that have not even been opened yet.
Phoenix Lockbox: 100,000 applications in the backlog that have not even been opened yet.
Chicago Lockbox: Roughly current and cases are being receipted within a week.
Please note that the destinations for Employment Based I-485s have recently changed and many cases are now being sent to the Chicago Lockbox, which previously only processed family-based petitions.
Today, the USCIS published a new rule in the Federal Register changing the way that H-1b petitions are chosen in the lottery. The lottery has always been a random selection process however, this new regulation would change the process to a wage based system in which persons being paid at wage level 4 would have a higher chance of selection then someone paid at a level 1 or level 2 wage level. It is believed that the new regulation would all but, eliminate any chance at a person being selected if they are offered a level 1 wage. Level 1 wages are typically offered to new grads (hence the designation Level 1) The new regulation makes it easier for employers based overseas to obtain visas for their key employees while making it harder for international graduates from U.S. schools to obtain a visa. Large outsourcing employers are cheering this change as they will be able to easily take advantage of the new rule whereas smaller employers and those who hire new grads, often in the healthcare industry, are decrying this policy change. Whether or not this policy survives a legal challenge or changes by the Biden Administration remains to be seen.
On Dec 31, 2020, a defeated President Trump fired another salvo at legal immigration by extending the visa ban to March 31,2020. A copy of his proclamation can be found here. The ban prevents the issuance of new H-1b and L-1 visas (among others) and is an extension of the ban issued in June of 2020. U.S. Consulates on Mon. cancelled existing appointments citing the renewed ban. The original ban exempted healthcare workers however, we have had visa appointments for healthcare workers cancelled this week. We are hopeful that this was a Consular error. We are optimistic that the Biden Administration will act quickly after taking office to reverse this ban. For more on this issue, including a nice analysis on the labor data that should be relevant, check out this Forbes article.
The reality is that no one knows what is next for immigration after this era of anti-legal/restrictionist immigration policies from Trump and Stephen Miller but, its always fun to speculate. For some interesting ideas check out this list of proposals from the Cato Institute. For those of you unfamiliar with the Cato Institute, it is far from a liberal think tank. It self-defines as libertarian and is funded by the Koch brother’s, known for supporting conservative policies (but, not Trump) particularly free markets.