Visa Crunch

Joe Biden freezes latest immigration rules

On inaugural day, 46th President of the US, Joe Biden’s administration has issued a memo to the federal agencies to freeze the regulatory course until March 21st, 2021 to review the guidelines proposed by Trump’s administration. Last-minute guidelines announced by the previous authorities will be paused with possible extensions after the 60-day interval.

The haste proposals from Trump’s term in Office were mostly based on immigration and had been from the federal agencies including the Department of Homeland Security (DHS) and Department of Labor (DOL) which consisted of the rules regarding the salary-based selection process for H-1B visas instead of the old lottery selection system. The final wage rule meant a spike in the salary in phases for all four skill levels from Level 1 or entry-level to Level 4 or fully-competent level. It also changed the definition of employer-employee relation and required the end-client also to file H-1B visa applications and Labour Condition Applications (LCA) even though only the primary employer had to do it previously. This would have made situations difficult for staffing companies, IT service companies and other companies that hire H-1B holders and the freeze from Biden’s administration will cease these rules.

The halt has come as a relief to the technology sector that depends on H-1B visas including Indians who hold a significant number of them generally. Partner at an immigration law firm called Fragomen, Mitch Wexler said that “regulations that have been sent to the office of the federal register (OFR) but not yet published are to be withdrawn consistent with OFR procedures so that they can be reviewed and approved by an agency head appointed by President Biden. This could affect the recently-announced DHS regulation redefining the H-1B employer-employee relationship, which was sent to OFR late on January 15 but has not been published,”

The new US government administration has asked the federal agencies to open a 30-day comments-receival period from stakeholders about the issues raised by these rules and to continue the review process they could extend the freezing period beyond March 21st which will be the termination date of the 60-day interval. Founder of a New York immigration law firm, Cyrus Mistry said that “as the H-1B rule that sought to replace the lottery system with one based on wages, will be frozen for 60 days, it probably will not impact the upcoming H-1B lottery process.”

The memorandum also mentioned that further actions will be based on the consultation with the Office of Management and Budget (OMB) who will be notified about the issues raised by these rules and will supervise the implementation of Joe Biden’s vision across the executive branch.

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