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.
A third Federal Court has ruled against the DOL and the Trump Administration for changes made to the DOL’s prevailing wage system. The lead plaintiff was Purdue University but, they were joined by other universities, AILA, and others. This Court even went a step further than the prior courts and ordered the DOL to re-adjudicate all PWD’s issued while the unlawful wages were in use. Forbes published a nice summary of the case. Kudos to all of those who litigated against these unlawful rules designed to gain political points for the election without regard to the harm caused to US businesses and the economy.
On Friday, the DOL, in compliance with a Federal Court order reverted back to the prior wage methodology which has been in effect for decades. When you check the FLCDataCenter now, the “old” wages will appear.
The DOL also announced that it will accept a request for reconsideration of any PWD issued using the “now struck down wages” regardless of when issued, if filed prior to Jan 4, 2021. The DOL did not indicate how long it would take them to re-issue new PWD’s or whether they would make those a priority but, typically a request for reconsideration takes at least 90 days.
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.
Here is a link to the Court order.
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.
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.
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.
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.