With the inauguration of Joseph R. Biden as president, there will be a substantial amount of change to the immigration system. These include changes to the legal employment immigration system as well. However, there are also substantial regulatory changes (or in some cases attempted changes) from the Trump administration that will need to be addressed by either the Biden administration or the courts. If not, they are likely to impact foreign professionals in the future. In part 1 of a 2-part series, I will discuss these remaining policy regulations. In part 2, I will address upcoming changes we expect to see from the Biden administration, both regulatory and statutory.
First the proposed rules that did not occur:
The H-1B “specialty occupation rule”: In early October 2020, the Trump administration issued an Interim Final Rule that would reclassify the meaning of specialty occupation and make it much more difficult for tech professionals to receive H-1Bs. In December, this IFR was enjoined by the US Chamber of Commerce vs. DHS litigation in the Northern District of California. As part of a “midnight regulation” in Mid-January, the Trump administration announced they planned to publish this as a final rule. The Trump administration missed their deadline to publish this rule. In an unprecedented move DHS published this rule on their own website on January 19, but it did not appear in the Federal Register prior to January 20, 2021. Publication in the Federal Register is a requirement for the rule to have legal effect. The Federal Register was closed on inauguration day, and the Biden administration has not chosen to publish this rule in the Federal Register. This effectively leaves the rule dead. Interestingly, in the copy of the rule, DHS published on its own website, DHS claimed that they sent it to the Federal Register on 01/14, but apparently, they did not.
The J-1/F-1 Regulation: This was a Notice of Proposed Rulemaking that would have made entry and maintenance of status as a F or J nonimmigrant very difficult. It would have made it particularly difficult for F-1 and J-1 nonimmigrants who embarked on a long course of study or training such as medical residents or Ph.D. students. The rule would have also severely restricted F-1 entry by nationals of countries with an overstay rate of greater than 10% such as Vietnam and Nigeria. The Trump administration failed to finalize and publish this rule and it will not go into effect.
Next the Rules that will go into effect:
The Department of Labor Wage Regulations: In October 2020 the Trump administration issued an emergency Interim Final Rule that greatly increased the required wages for H-1B professionals. This IFR was designed to work in tandem with the H-1B Specialty Occupation Rule that did not go into effect. The Wage Regulation will require employers to substantially increase the amount they will be required to pay their H-1B employees as well as increase the required wages of permanent residence applicants. Of note, since wage data is not available for a number of locations, at times this rule will force a minimum prevailing wage of $208,000 for a number of professionals including many rural primary care physicians. Many small rural medical practices cannot afford this wage. In November and December two separate federal courts enjoined this rule (Purdue University Scalia and U.S. Chamber of Commerce vs. DHS, respectively). Although enjoined, the Trump administration published a final rule identical to the IFR on January 12. The Biden administration has announced they are delaying implementation of all midnight regulations for at least 60 days. In order to fully rescind this rule, the Biden administration would have to go through subsequent rescission rulemaking (which would be subject to litigation by anti-immigrant interest groups). The plaintiffs in the Purdue and U.S. Chamber cases are likely to amend their pleadings to address the final rule. It is unknown whether the Biden Labor Department will continue to defend the final rule or whether they will withdraw. It seems likely that the Biden administration will continue to defend this rule as Biden has expressed support for similar legislation in the past. If they were to withdraw, there is a process that allows interested parties to substitute for the Department of Labor and defend the regulation. I am optimistic that this rule will eventually be enjoined. The comment period was only 30 days, there was no OMB/OIRA review, and there were few substantive responses to comments that were submitted.
H-1B Lottery rule: The Trump administration also passed a midnight regulation that would change the priority of the H-1B lottery. Under the rule, instead of a random lottery, H-1B employees with higher wages would be given priority. It currently appears that this rule will not be in place for the April 2021 H-1B lottery. The Biden administration signed an executive order that delayed implementation of all rules for 60 days from that date (March 20). March 20 was the end of last year’s H-1B electronic registration period. There is a separate regulatory requirement that mandates the H-1B electronic registration period must begin at least 14 days prior to the April 1 H-1B lottery. This effectively means this rule cannot be implemented this year. Prior to the April 2022 lottery, there are likely to be several court challenges to this rule and possibly new rulemaking on the issue.
H-4 EAD adjudication delays: Over the last few months H-4 EAD renewal has been an ever-increasing problem. H-4 EAD nonimmigrants are spouses of H-1B holders who have a right to work in the US based upon an Obama era regulatory change. The Trump administration has extended the processing time for H-4 EADS from approximately 15 to 30 days (when premium processing was available) to more than 10 months. The Trump administration has cited Covid-19 and a biometrics requirement that they imposed as the cause of the delay. It is notable, however, that these adjudication delays significantly increased after the Trump administration failed in the courts to entirely rescind work authorization for these individuals. An H-4 nonimmigrant can only file for their renewal 6 months before expiration of their status, the result being that many employers have had to terminate employees who did not receive their H-4 EAD renewal in time. There is litigation pending on the matter. Also, the Biden administration could take action on this issue. Possible remedies could include either an automatic extension of prior H-4 EAD cards or the opening up of premium processing for these individuals (as part of a bill already passed by Congress).
Please check back for part 2 of this series. As always, please contact the immigration professionals at Bunger & Robertson for all your immigration needs.