Referring to the need to adequately assess their potential impact, the Biden Government tries to delay or reverse, in some cases, a triumvirate of rules given by the past government aimed to dramatically change the H-1B process. These include a rule substantially raising prevailing wages, an H-1B Rules changes the definition of “specialty occupation” and the “employer-employee relationship,” and a rule that would lead to the selection of H-1B cap cases based on wage level – with the highest wage levels prioritized.
The effective date of the prevailing wage rule has been delayed until the end of 2022. While the Department of Homeland Security conducts a careful review.
The H-1B Rules changes definitions was removed by the Biden Government.
The third rule, the Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject H-1B Petitions (the Modification Rule), has been delayed until 31st December 2021. To allow more time to understand and implement it appropriately. However, the chance remains that the rule could go into effect for the FY 2023 H-1B cap lottery. With an end goal to additional defers or pull out the standard out and out, U.S. organizations spreading over an assortment of businesses have joined together and gotten suit government court in Humane Society of New York v. Mayorkas.
Delays To H-1B Rules Changes
The Humane Society plaintiffs include non-profits, start-ups, healthcare concerns, and small businesses. They accept they would be not able to supply required public services. If the rule is executed in light of their inability to offer salaries above the Level 1 prevailing wage for necessary entry-level positions. The plaintiffs accept that the rule “unlawfully equates salary with value” and, in violation of the statute. Makes the H-1B cap program dependent on just one factor: salary. In their objection, the plaintiffs allege that the rule violates the Administrative Procedures Act and the Immigration and Nationality Act. And that former Acting Secretary of DHS Chad Wolf lacked the authority to implement the rule.
Courts have held that Wolf’s appointment was not appropriate and, hence, rules he implemented couldn’t stand. After Kirstjen Nielsen left her post as secretary of DHS in April 2019, until February 2021. When President Joe Biden’s nominee for the post, Alejandro Mayorkas, was confirmed, there were only “acting” secretaries in place. Those appointments, according to different courts, violated the rules in place for filling vacancies. Thus rendering invalid the rules enacted during those appointments.
We will continue to provide updates on the Modification Rule and the ongoing federal litigation as they become available.