Gunster’s Immigration Practice Group continues to monitor the immigration developments. Below is a summary of some of the latest developments.
Regulatory Freeze Announced by Biden Administration
On January 20, 2021, White House Chief of Staff, Ron Klain, issued a Memorandum, Regulatory Freeze Pending Review, (“Memorandum”) directing the review of pending regulatory actions which directs, in part, that 1) all rules pending at the Federal Register that have not been published must be immediately withdrawn and 2) agencies must “consider” postponing the effective dates for regulations that have been published, but not yet taken effect, for 60 days from the date of the Memorandum, January 20, 2021.
U.S. Department of Labor Announces Delay in Effective Date of Final Rule Affecting Wages for H-1B and PERM Workers
On February 1, 2021, the U.S. Department of Labor (“DOL”) issued a Federal Register notice informing the public that the Final Rule, Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States, would be delayed from March 15, 2021 to May 14, 2021. On January 20, 2021, Ronald A. Klain, Assistant to the President and Chief of Staff, issued a memorandum titled “Regulatory Freeze Pending Review” that directed federal agencies to consider postponing the effective date of any rules published in the Federal Register but not yet taken effect to allow the new administration to review “any questions of fact, law, and policy” raised by the rule. This notice also informs the public that the DOL will solicit comment on the final rule for a period of 15 days.
The U.S. Citizenship and Immigration Services (“USCIS”) Modifies H-1B Selection Process to Prioritize Wages
On January 7, 2021, USCIS announced a Final rule that will modify the H-1B cap selection process, amend current lottery procedures, and prioritize wages to protect the economic interests of U.S. workers and better ensure the most highly skilled foreign workers benefit from the temporary employment program.
USCIS states that modifying the H-1B cap selection process will incentivize employers to offer higher salaries, and/or petition for higher-skilled positions, and establish a more certain path for businesses to achieve personnel needs and remain globally competitive.
This effort will only affect H-1B registrations (or petitions, if the registration process is suspended) submitted by prospective petitioners seeking to file H-1B cap-subject petitions. It will be implemented for both the H-1B regular cap and the H-1B advanced degree exemption, but it will not change the order of selection between the two.
Unless delayed pursuant to the White House Memorandum, Regulatory Freeze Pending Review, the Final Rule is set to become effective 60 days after its publication date of January 8, 2021 in the Federal Register, March 9, 2021. At present, we continue to monitor the potential impact on the upcoming H-1B Visa Lottery which will commence in March 2021.
Proposed H-4 Employment Authorization Document (“EAD”) Rescission Rule Withdrawn from Review at the Office of Management and Budget
On January 25, 2021, the Trump-era proposed regulation, Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization (commonly known as the “H-4 EAD Rescission Regulation”), was withdrawn from review at the Office of Information and Regulatory Affairs (“OIRA”), an office within the Office of Management and Budget tasked with the review of executive branch regulations.
The proposed regulation had been pending with OIRA since February 2019. The withdrawal of this proposed regulation was in response to the White House Memorandum, Regulatory Freeze Pending Review, directing the review of pending regulatory actions. Companies and individuals with ongoing or prospective immigration processes and their employees, colleagues or family members who may be affected by these recent immigration developments should consult with counsel on individual situations. Gunster’s Immigration Practice Group remains available to answer your questions.
We attribute this summary in part to information published by the American Immigration Lawyers Association
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This publication is for general information only. It is not legal advice, and legal counsel should be contacted before any action is taken that might be influenced by this publication.
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