Week 1 of the Biden Administration: Employment-Based Immigration Update

22. Jan. 2021

Wasting no time, White House Chief of Staff Ron Klain issued a memorandum on January 20th that directs, in part, that 1) all rules pending at the Federal Register that have not been published must be immediately withdrawn and 2) agencies must "consider" postponing the effective dates for regulations that have been published, but not yet taken effect, for 60 days from the memo's date (i.e., postponed until at least March 21, 2021).  Here’s what that means for the following rules, which the Trump Administration tried to implement in its waning days:

DHS’s “Strengthening The H-1b Nonimmigrant Visa Classification Program” – WITHDRAWN

ILG initially wrote about this rule in October and reported on the district court decision to strike it down.  After the rule was struck down, the Trump administration sought to revise and re-publish the rule, but was unable to do so before President Biden took office.  As such, this revised rule, which sought to redefined "employer-employee relationship" and make it unduly difficult for outsourcing companies to hire H-1B employees, has been withdrawn permanently. 

DOL’s “Strengthening Wage Protections For Temporary And Permanent Employment”— POSTPONED  

This rule, which sought to significantly increase prevailing wages also failed after court challenges, but on January 14, 2021, DOL was able to re-publish a revised rule.  The Biden administration’s postponement will delay effective date until March 21, 2021. It remains to be seen whether the Biden administration will revise or rescind this rule.  If the rule is allowed to stand, the new prevailing wage methodology is not required until July 1, 2021.

H-1B Cap Selection Prioritizing Higher Salaried Employees - POSTPONED

On January 8th, the Trump administration published a final rule to completely change how the H-1B lottery works.  The Biden administration postponed this rule and has directed DHS to “consider further delaying, or publishing for notice and comment proposed rules further delaying, such rules beyond the 60-day period.” As it stands, it is highly unlikely that the wage-prioritized selection system can take affect this year.  Even without the postponement, it was not feasible for USCIS to implement such a major change before the lottery registration process, which occurs in March.

The Biden administration also plans to propose legislation to clear employment-based green card backlogs and exempt STEM degree holders from green card quotas.  However, such new legislation will take time as they would have to be approved by the U.S. House of Representatives and the U.S. Senate before President Biden can sign it into law.