A lot has happened on the H-1B front in recent months. Developments include late-breaking Trump administration redefinitions of the employer-employee relationship and “specialty occupation,” new guidance on H-1B filing and compliance requirements, and rules drastically raising prevailing wages. In some instances, court decisions have blocked these moves, at least temporarily. 

With the new Biden administration has come an across-the-board review of Trump-era policies and regulations, along with a flurry of activity on the immigration front, including the advance of a wide-ranging comprehensive immigration reform bill that includes provisions affecting the H-1B field. On top of it all, the fiscal year (FY) 2022 H-1B visa registration period looms in March.

Selected highlights of these developments are summarized below:

FY 2022 H-1B Visa Registration in March

The initial registration period for FY 2022 H-1B cap-subject petitions opens at noon ET on March 9, 2021, and runs through noon ET on March 25, 2021. People can begin creating and submitting H-1B registrations as of March 9, although they can create an online account in myUSCIS at any time.

U.S. Citizenship and Immigration Services (USCIS) said that prospective petitioners seeking to file H-1B cap-subject petitions, including for beneficiaries eligible for the advanced degree exemption, must first electronically register and then pay the associated $10 H-1B registration fee for each beneficiary. Selections will take place after the initial registration period closes, so there is no requirement to register on the day the initial registration period opens. The idea is to eliminate the stampede of past years, although earlier is better to reduce any risk of last-minute issues hampering the ability to register.

Wage Issues: Legislative and Court Developments, Related Research

The wide-ranging new immigration reform bill advanced by the Biden administration and Democrats in Congress includes provisions that echo and would provide a statutory basis for a late Trump-era Department of Homeland Security (DHS) rule that prioritizes nonimmigrant visas for temporary workers (including H-1B) based on wages offered by employers and ends the random H-1B lottery system.

In December 2020, a U.S. district court in California vacated two interim final rules that included significant changes to the H-1B program. The court made its decision not on the merits of the rules but rather because the agencies did not follow notice-and-comment requirements. The Department of Labor’s (DOL) rule would have raised prevailing wages for nonimmigrant H-1B, H-1B1, and E-3 foreign workers and immigrant EB-2, EB-3, and foreign workers by changing wage computations. The Department of Homeland Security’s (DHS) rule revised the definition of an H-1B “specialty occupation” and added definitions for “worksite” and “third-party worksite,” among other changes. The DOL rule was to take effect December 7, 2020; the DHS rule took effect in October.

The court did not address the merits of plaintiffs’ claims. The wage rule was finalized in early January 2021, but USCIS delayed its effective date to December 31, 2021, meaning that it does not apply to the upcoming H-1B filing season this March for cap-subject petitions. It is uncertain whether the government will appeal the court’s decision, whether the related wage provision in the Biden bill will be passed, or whether the incoming administration will reissue the two rules with a comment period or make any changes. 

An analysis of the H-1B wage rule by the National Foundation for American Policy (NFAP) found that it would significantly inflate the required or “prevailing wage” for an H-1B worker in a way that would place the “entry level” wage at close to the median wage for such workers. NFAP research found that “the wages mandated under the new DOL rule do not reflect market wages or meet the definition of a prevailing wage.” 

Some required minimum annual salaries under the proposed rule would increase by more than 100%, or even 200%, NFAP found. For example, the required minimum for a computer and information systems manager in East Stroudsburg, Pennsylvania, would increase 206.5%, and the required minimum for a pediatrician in Wichita, Kansas, would be paid 177% more.

NFAP also pointed out that the new wage rule “appears to be unworkable for employers in another important respect: The new DOL wage system requires employers to pay exactly $100 an hour, or $208,000 a year,” for more than 18,000 combinations of occupations and geographic labor markets regardless of skill level and position. This is because “DOL cannot provide prevailing wage data for the occupations under the new system. This takes place for some of the most common high-skilled occupations in America’s leading high-tech area.”

As another concern, NFAP noted that according to DOL, nearly 40% of all approved PERM labor certifications are for software developers. However, DOL states that under the proposed rule, all software developers must be paid $208,000 a year, regardless of skill level, in San Jose, San Francisco, and other U.S. cities, including Battle Creek, Michigan; Cape Coral-Fort Myers, Florida; Lebanon, Pennsylvania; Merced, California; Monroe, Michigan; the northwest Virginia nonmetropolitan area; Parkersburg-Vienna, West Virginia; and Reno, Nevada.

It remains to be seen whether the wage rule will actually take effect in December.

DOL Revision of Interpretation, New Guidance Clarifying H-1B Filing and Compliance Requirements

On January 15, 2021, DOL’s Office of Foreign Labor Certification (OFLC) revised its interpretation of regulations concerning which employers of H-1B workers must file a Labor Condition Application (LCA). OFLC said it now requires all common-law employers of H-1B workers, including any secondary employers who meet the common-law test, to file an LCA. DOL’s Wage & Hour Division further clarified the responsibilities of primary and secondary employers under their LCAs. DOL said the guidance would take effect in 180 days. 

The Biden administration is reviewing all late-breaking policies and regulations of the Trump administration.

Rescission of Policy Memo on H-1B Computer-Related Positions

In early February 2021, USCIS rescinded a 2017 Trump administration policy memorandum that rescinded a December 2000 guidance memo on H-1B computer-related positions. USCIS ordered officers not to apply the rescinded memo “to any pending or new requests for H-1B classification, including motions and appeals of revocations and denials of H-1B classification” and said that further guidance would be forthcoming. 

The memo relates to a December 2020 decision by the U.S. Court of Appeals for the Ninth Circuit in Innova Solutions v. Baran that overturned USCIS’s “arbitrary and capricious” denial of an H-1B nonimmigrant visa petition. USCIS said its decision to rescind the memo is to ensure “consistent adjudications across the H-1B program.”

Among other things, the 2017 policy memo stated that it was “improper” to conclude that USCIS would generally consider the position of programmer to qualify as a specialty occupation. The memo also stated that “the fact that a person may be employed as a computer programmer and may use information technology skills and knowledge to help an enterprise achieve its goals in the course of his or her job is not sufficient to establish the position as a specialty occupation,” and that a petitioner may not rely solely on statements in the Occupational Outlook Handbook “to meet its burden when seeking to sponsor a beneficiary for a computer programmer position.” Instead, USCIS said in 2017, a petitioner “must provide other evidence to establish that the particular position” is a specialty occupation.

For advice in specific situations, contact your Miller Mayer attorney.

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