Mon. Sep 20th, 2021

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New H-1B rule not valid, other changes on hold for 60 days

3 min read
Suspension of Biometric Screening

New H-1B Rule: A proposed rule, calling for changes to the employer-employee relationship in the H-1B immigrant program, will no longer be valid as it has not been issued in the Federal Register

The Federal Register contains US government agency rules, proposed rules, and public notices. 

The change, proposed by the past government under Donald Trump, was introduced a week ago looking for changes to the terms of employees placed at third-party locations and called for the end client to also be responsible for the employee.

This would have made it more costly for services organizations to place employees at customer sites as employees would have had to be paid at the prevailing wage rates at client organizations.

Immigration experts said the rule was probably not going to be revived by the new government headed by President Joe Biden. 

However, recent changes presented by Trump, for example, higher wage requirements may not be reversed.

“The Biden government has expressed support in overhauling the (H-1B) program and making it a wage-tiered system. Thus, even though this version of the guideline could be enjoined or postponed. We should expect the Biden government to implement something similar,” said Nandini Nair, partner at law firm Greenspoon Marder.

Recently, a final rule calling for higher wage levels was published. Which makes it harder for small organizations and new companies to recruit H-1B workers. This is additionally applicable to employees being sponsored by their employer for a green card. Services organizations will either need to absorb the higher wages or pass it on to clients. Both of which could have a business impact.

This rule has now been frozen for 60 days till March 21 according to a notice gave by the White House. Putting any guidelines that have been given yet not implemented on hold.

New H-1B Rule Not Valid

This will allow the new Biden government to survey them. Hence, the H-1B visa lottery for FY2022 is probably not going to be affected. And should be carried out under the existing lottery system.

The ban on giving new H-1B visas, which Trump had extended till March 31, is, however, still in place.

During that 60-day pause, the government can give a new rule to repeal the old rule or such a pause would give more time to challenge. These rules in court if the Biden administration decides to go along with them. I can see the Biden government being thoughtful towards the Department of Labor wage rule. That increases the wage requirement to be paid to H-1B workers, said immigration lawyer Cyrus Mehta. 

Meanwhile, demand for jobs in computer occupations continues to rise in the US.

As of January 13, there were over 750,000 job vacancies posted, a 20% increase compared to May 2020.

[Biden to Sign Immigration Executive Order on 2nd Feb 2021]

While Indian services organizations have been reducing their dependence on the H-1B visa in the last few years. It is still an important part of their overall strategy. “The changes are detrimental and will harm the US economy,” Singh said.

On his first day in office, US President Biden proposed a Bill. Which, if passed, will decrease wait times for Indians to get a green card.

“The new Bill, if it results in the infusion of hundreds of thousands of visas each year, will drastically reduce backlogs. It will also give work approval to H-4 spouses and prevent youngsters from aging out. All these measures, if passed by Congress, will benefit Indians looking for green cards in the US. This Bill would be an incredible improvement over the past Bill in giving relief to Indians who have been trapped in decades-long backlogs,” Mehta said.

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