End of Year Immigration Update: Federal Litigation Successes and Proposed H-1B Lottery Changes

Over the last few weeks, the Department of Homeland Security (DHS) and the Department of Labor (DOL) tried enacting multiple changes in the regulations that govern applications for temporary work visas and permanent residence application processes. Some of these regulatory changes have been successfully challenged in court and some are still in the process of potentially becoming final. Additionally, there are bills in both the Senate and House of Representatives that, if merged into a single bill and passed/signed into law before Joe Biden becomes President, could fundamentally change the U.S.’s current immigration scheme as we know it.

Below is a summary of what has been happening and how we anticipate that it might play out:

DOL interim final rule relating to the computation of wage data for temporary and permanent employment applications.

  • This rule drastically increased prevailing wage data for certain nonimmigrant visa applications and PERM Labor Certification applications for permanent foreign workers.
  • Took effect on October 8, 2020
  • December 1st – a federal court set aside the rule and the DOL has since reverted its wage database to reflect the wage data that was last in effect on October 7.
  • We anticipate that the current administration will not devote its focus to this issue going forward and that current rules should remain intact into the Biden administration and beyond.

USCIS interim final rule that would have revised the definition of “specialty occupation” for H-1B petitions.

  • This rule would have become effective on December 7, and would have narrowed the definition of “specialty occupation” as well as made several other changes.
  • December 1st – the rule was struck down by the same federal court which struck down the DOL rule. The court’s action is effective nationwide.
  • We anticipate that the current administration will also not devote more time to this issue and that current rules should remain intact into the Biden administration and beyond.

USCIS proposed rule to create a wage-based selection process for the H-1B Lottery.

  • If enacted, this rule would change the H-1B registration selection process for the annual lottery from one that is random to one that is wage-based. This would effectively shut out skilled, educated foreign workers from entry level positions. Moreover, only the companies that could pay the highest of wages would be able to afford sponsoring someone for the H-1B lottery.
  • The comment period closed on December 2nd – the government received 1,478 comments.
  • Typically, it takes months for the government to review all comments, respond and draft a final rule, and have it cleared through the required agencies and departments. The current administration, however, may have things already in motion to finalize it, especially if they do not intend to make any policy changes based on the comments that were submitted.

Senate Bill S.386 and H.R. Bill 1044

  • By eliminating the per country limitations without adding any new green card numbers, these bills would exclude essential workers from all countries other than China and India, as those two countries dominate the visa backlog. Our current laws prevent any one country from receiving more than 7% of green cards annually for high-skilled workers, but if either of these bills become law, such a cap would be done away with. While eliminating the caps would initially reduce the backlog for nationals from India and China, for example, it would shift that backlog onto nationals from the rest of the world – adding years of delays. Long-term, the backlog may potentially by as long as 17 years for all (including Indians and Chinses nationals). This bill would also effectively cripple the EB-5 Program that brings millions of dollars of investment into the U.S. each year. Additionally, such a bill would create years long delays for highly skilled immigrants in high-need areas, such as health care and medical research.
  • The Senate’s bill just recently passed with some changes, but it is significantly different from the bill that the House passed in July 2019. Neither bill can become law until both the Senate and House agree, and then the President would have to sign the bill into law. As such, the House and Senate will have to negotiate and come to an agreement on a final version before it is sent to the President. Moreover, if a single bill is not passed by the end of this Congressional session which is likely to end on December 18, 2020, the bill will need to be reintroduced in the new Congress. Given the number of priorities that both the current and new Congress are and will be facing, including appropriations and COVID-19 relief, it is unclear how the passage of a Fairness for High-Skilled Immigrants Act will be prioritized.
  • To locate your state’s Senators so that you or others you know can voice your opinion about S.386, go to: https://www.senate.gov/general/contact_information/senators_cfm.cfm? OrderBy=state&Sort=ASC
  • To locate your state’s Congressional representatives about H.R. 1044: https://www.house.gov/representatives/find-your-representative

For any additional questions please reach out to info@jeffgoldmanimmigration.com.

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