Biden Administration Tackles Trump-Era H-1B Restrictions

The Biden Administration has taken swift action in relation to H-1B program reforms proposed during the Trump-era.

Trump had sought to severely restrict the H-1B route for specialized non-US workers, but following direction on the first day of the new Administration, all pending regulatory actions – including those potentially affecting the H-1B program – were directed to be reviewed.

In a memorandum issued on January 20th, the White House’s new Chief of Staff directed that all rules pending publication at the Federal Register were to be immediately withdrawn and that agencies must “consider” postponing the effective dates for regulations that had been published, but not yet taken effect, for 60 days from the date of the memorandum.

Further, any final rule that had already published, but not yet taken effect, may upon further agency action be postponed for until March 21, 2021. This included the H-1B Wage Selection Final Rule.

The proposed H-1B reforms have been affected as follows:

  • On January 21, 2021, DOL announced it had withdrawn the Office of Foreign Labor Certification H-1B Program Bulletin and a Wage and Hour Division Field Assistance Bulletin (FAB).
  • The ‘Strengthening the H-1B Nonimmigrant Visa Classification Program Final Rule’ was withdrawn. The proposal had been set to introduce an LCA filing requirement on secondary common-law H-1B employers and create a new legal test for the employer-employee relationship.
  • On February 4, 2021, USCIS confirmed it was delaying the effective date of the new H-1B wage-based selection process to December 31st, 2021. The rule is not expected to be rescinded, rather the delay is to allow the agency time to develop, test and implement the modifications to the H-1B registration system and selection process, as well as to train staff and conduct external stakeholder engagement.
  • The DOL published a document on February 1st, 2021, proposing to delay the effective date of the final rule on computation of prevailing wage levels until May 14, 2021. Consulation will remain open until February 16th, 2021.
  • On February 3, 2021 USCIS removed with immediate effect the guidance memo which denied the H-1B visa for computer programmer-related occupations.

The FY 2022 H-1B electronic registration process opens on March 9, 2021 and will close March 25, 2021.

US immigration advice

NNU Immigration are a team of London-based US immigration attorneys. We work with employers on all aspects of employment sponsorship in the US under the H-1B program. For any queries about sponsorship or visa eligibility or the application process, contact us.

This article does not constitute direct legal advice and is for informational purposes only.

Last updated: February 2, 2021