Articles
Immigration Alert UPDATE: Final Rule on "Strengthening the H-1B Nonimmigrant Visa Classification"
on January 21, 2021January 21, 2021
The Biden-Harris Administration has provided some immediate relief for users of employment-based immigration programs. On January 20, 2021, incoming White House Chief of Staff Ron Klain issued a memorandum that directs the following:
1. All rules pending on the Federal Register which have not yet been finally published must be immediately withdrawn; and
2. Federal administrative agencies must "consider" postponing the effective dates for any regulations which have already been published, but not yet taken effect, for an additional sixty (60) days.
As a result this move by the White House, the U.S. Citizenship & Immigration Services (USCIS) final rule, “Strengthening the H-1B Nonimmigrant Visa Classification Program,” which was intended to narrow the regulatory definition of the "employer-employee relationship" for H-1B purposes, will be withdrawn.
The companion guidance published by the Department of Labor, regarding filing and posting requirements for Labor Condition Applications by secondary employers, and which had itself relied upon the finalization of the new USCIS rule, it is also likely to be withdrawn.
While it is not yet certain, an additional result of the Chief of Staff’s memorandum—the previously reported USCIS final rule creating a wage-based selection process for H-1B ‘cap’ petitions for Fiscal Year 2022—may, upon further agency action, be postponed until March 21, 2021, effectively deferring its applicability to the upcoming H-1B ‘cap season.’
We will continue to monitor this situation closely, and provide updates as they become available. Please contact me or another member of our Immigration Practice Team if you have any questions, or would otherwise like to discuss.
The Biden-Harris Administration has provided some immediate relief for users of employment-based immigration programs. On January 20, 2021, incoming White House Chief of Staff Ron Klain issued a memorandum that directs the following:
1. All rules pending on the Federal Register which have not yet been finally published must be immediately withdrawn; and
2. Federal administrative agencies must "consider" postponing the effective dates for any regulations which have already been published, but not yet taken effect, for an additional sixty (60) days.
As a result this move by the White House, the U.S. Citizenship & Immigration Services (USCIS) final rule, “Strengthening the H-1B Nonimmigrant Visa Classification Program,” which was intended to narrow the regulatory definition of the "employer-employee relationship" for H-1B purposes, will be withdrawn.
The companion guidance published by the Department of Labor, regarding filing and posting requirements for Labor Condition Applications by secondary employers, and which had itself relied upon the finalization of the new USCIS rule, it is also likely to be withdrawn.
While it is not yet certain, an additional result of the Chief of Staff’s memorandum—the previously reported USCIS final rule creating a wage-based selection process for H-1B ‘cap’ petitions for Fiscal Year 2022—may, upon further agency action, be postponed until March 21, 2021, effectively deferring its applicability to the upcoming H-1B ‘cap season.’
We will continue to monitor this situation closely, and provide updates as they become available. Please contact me or another member of our Immigration Practice Team if you have any questions, or would otherwise like to discuss.
