Trump H-1B Rules Reversed Under Biden

On day one, President Biden reversed two H-1B rules recently issued by the Trump Administration that have stymied H-1B employers and employees.

Trump H-1B Regulations – What Are They?

The Trump Administration issued 2 new H-1B rules in the past few months. The first, “Strengthening the H-1B Nonimmigrant Visa Classification Program,” narrowly amends a regulation to clarify how U.S. Citizenship and Immigration Services (USCIS) will determine an “employer-employee relationship” between petitioner and beneficiary. The rule requires an additional LCA filed by the secondary employer in addition to the primary employer. USCIS did not publish this final rule in the Federal Register.

The second regulation called, the “Wage Selection Final Rule,” dictates that H-1B lottery winners would be prioritized based on those paid the highest wages down to the lowest. This results in all entry level and those with 1-3 years of experience being shut out of the H-1B lottery. The H-1B lottery only allows for 85,000 visas per fiscal year and begins March 2021. USCIS published this final rule, and it became effective January 14, 2021.

Biden Action on These H-1B Rules

On January 20, 2021, White House Chief of Staff Ron Klain issued a memorandum 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directs, in part, that 1) all rules pending at the Federal Register that have not been published must be immediately withdrawn and 2) agencies must “consider” postponing the effective dates for regulations that have been published but not yet taken effect for 60 days from today’s date.

So this Freeze Memo reversed the H-1B rules by automatically withdrawing the “Strengthening” regulation, and postponing the “Selective Wage Final Rule” until March 14, 2021.

The elimination of the “Strengthening” rule allows staffing agencies and possibly third party companies to avoid having to file an “extra” H-1B/LCA” which the new rule was mandating. The impact of postponing the Selective Wage Rule is less clear because USCIS is in the H-1B Season and lottery applicants must know if they are eligible to file ideally prior to March 1, 2021. The Biden Administration know doubt is aware of this. It will hopefully remedy the situation quickly.

This speedy action by the Biden Administration indicates a U-turn in direction the Trump Administration took in trying to limit the number of H-1B applicants eligible for an H-1B.

For further comments on H-1B status during the Biden Administration, contact H-1B lawyer Catherine O. Brown at 303-322-2117.

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