The White House just outlined its plans for immigration reform under the Biden Harris Administration this week: https://www.whitehouse.gov/briefing-room/statements-releases/2021/02/02/fact-sheet-president-biden-outlines-steps-to-reform-our-immigration-system-by-keeping-families-together-addressing-the-root-causes-of-irregular-migration-and-streamlining-the-legal-immigration-syst/

While definitely a welcome, those involved with employment-based immigration are still waiting to see how this administration will be handling some of the “midnight” rules and proposals the former administration issued impacting the H-1B process.

One that has drawn a lot of attention is the proposal to allocate new H-1B visa numbers based on wage levels. When an employer files an H-1B petition, an employer promises to pay the foreign national the higher of either the actual wage rate paid to similarly occupied US workers or the prevailing wage for the offered position as determined by the US Department of Labor. Prevailing wages are based on occupational classification, area of employment, and the job requirements and responsibilities within that occupation. There are four wage levels per occupation. The proposed rule was going to allocate H-1B visa numbers based on the wage levels, with the highest wage level receiving preference. This new selection process was to take effect on March 9, 2021.

Today USCIS announced that it will need more time to “develop, test, and implement the modifications to the H-1B registration system and selection process” and therefore the rule will not take effect at least until December 31, 2021. What this means is that the H-1B registration and selection process will therefore not be based on wages. That said, the H-1B registration and selection process will continue as before and it is anticipated that the registration period will start in March 2021. If you have an interest in registering for an H-1B visa for your employees, please make sure you contact an immigration attorney as soon as possible before the registration period is over.

The above information has been provided for educational purposes only. Please contact your Clark Lau LLC attorney to see how the above impacts your circumstances.