Sat. Dec 4th, 2021

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Biden admin’s spring agenda: Modernising H-1B visa program, revising wage methodology

3 min read
H-1B Petitions

Biden Admin’s Spring Agenda: With regards to the proposed course of action as regards the H-1B program, the main bi-annual plan to be carried out by the Biden government is a mixed bag.

The Department of Homeland Security (DHS), in its spring plan released on Friday, proposes to revise the regulations relating to the ‘employer-employee relationship’. Also, it expects to implement new requirements and rules for site visits. Including in connection with applications filed by employers sponsoring H-1B workers, where there is an indication of fraud.

As indicated by immigration experts, it is hazy what a modification in guidelines relating to the ‘employer-employee relationship’ could entail. However, they point out that the draft proposals in this regard will be given by December and they will go through an appropriate process of rule-making. Which includes welcoming stakeholder comments and vetting the same, before finalization. Thus, it isn’t probably going to adversely impact genuine business needs.

Also, the Biden admin’s spring agenda requires a revision in the methodology for determining the prevailing wage levels for H-1B and green cardholders. As TOI had revealed before, one of the action points in US President Joe Biden’s pre-election manifesto. To ‘Curb exploitation of foreign workers, by guaranteeing that employers can’t recruit below the market rate’.

The Biden government has looked for public comments on the best methodology and information. To use in updating the minimum wage requirements for H-1B visa and green cardholders. The draft proposal on wage methodology will be released by November 2021. It will be a while before it is finalized. Further, there will also be a transitional phase to the new wage levels.

Biden Admin’s Spring Agenda

In parallel, DHS is also reviewing the Trump-era proposal. Which had sought to allocate H-1B visas based on wages rather than a random lottery system. The effective date of this proposal had been posted by the Biden government until December 2021.

Filing fees for visas, visa extensions, and different applications filed with the US Citizenship and Immigration Services (USCIS). Are expected to increase and will be known in November 2021. While the Trump government had tried to increase the fees (with some fees such as for citizenship applications being hiked by 80%). It had been stalled at the legal level.

Simultaneously, the extension for premium preparing, which currently is largely relegated to the processing of H-1B visas. Also, it is expected to be widened to cover other visa applications and filings.

[Visas and Immigration in 2021 Under the Biden Administration – Update]

On the other side, DHS also proposes to give flexibility on employment start dates (in restricted conditions). And furthermore, address the cap-gap issued faced by international students.

The term cap-gap refers to the period between the time an international student’s F-1 status ends and the H-1B status starts. International students are eligible for a year (three years for STEM students) optional practical training (OPT) under which they can work in the US. As a rule, the associations where they are going through OPT sponsor them for the H-1B work visa. If the H-1B application is filed in time, they can continue working past the expiry date on their OPT employment authorization document. While waiting for the beginning date (October 1) of an approved or pending H-1B application.

However, if the application isn’t processed by October 1, the student should stop working as of this date. Numerous students have missed out, because of this and the spring agenda indicates that the cap-gap issue will be addressed.

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