DHS, DOL, and Congressional Updates on H-1B Visa Program

DHS Withdraws H-1B Selection Prioritization (Visa Lottery) Rule

The Department of Homeland Security (DHS) will publish in the December 22, 2021 Federal Register a rule rescinding the Trump Administration rule that would have dramatically changed the way H-1B visas were allocated.

On January 8, 2021, the Trump Administration published the “Modification of Registration Requirement for Petitioners Seeking To File Cap-Subject H-1B Petitions” that prioritized registrations based on the highest Occupational Employment Statistics (OES) prevailing wage level. The Biden Administration announced on February 4, 2021 that the implementation would be delayed until December 31, 2021. In May 2021, the American Immigration Lawyers Association and a group of employers sued to enjoin the rule.

Mike Hammond of the Hammond Neal Moore, LLC explains, “[t]his means next year’s H-1B CAP selection process will be the normal random lottery and NOT based on wage levels of the position. Petitioners can take this holiday season gift from DHS and begin their preparations for next year’s registration with a clearer picture.”

House of Representative Members Write DHS Urging Action on Backlog of H-4 and L-2 Visas

On December 21, 2021, Representative Deborah Ross (D-NC) and 23 colleagues wrote DHS Secretary Alejandro Mayorkas urging him to “fix the backlog of work authorizations for immigration spouses.”  After thanking DHS for recently rescinding the additional biometric requirements, the Representatives urge DHS to address the backlog that has “forced tens of thousands of immigrant women, many in STEM fields, to quit their jobs and deprived their families of financial security.” Other improvements requested include expanding premium processing to additional visa categories, including H-4 and L-2.

If these issues are important to your company, please email the TechServe Alliance Government Affairs Team to let us know so we can do additional outreach in support of this effort.

Department of Labor Rescinds Regulation Increasing H-1B Wage Levels

On December 14, 2021, the Department of Labor (DOL) rescinded the Trump Administration regulation finalized on January 14, 2021 that would have significantly increased H-1B prevailing wage levels. The new wage levels would have phased in beginning in July 2021, but the Biden Administration delayed the effective date and federal courts in separate actions set aside or enjoined enforcement of the rule.

National Law Review, “Department of Labor Rescinds Prior Regulation that Dramatically Increased Prevailing Wages,” December 22, 2021

This rule was first considered during the fall of 2020 when on October 8, 2020, the DOL published effective immediately an Interim Final Rule (IFR), “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens,” that would have dramatically changed H-1B prevailing wage levels.

In response, TechServe Alliance submitted comments opposing procedure and substance of the rule and input from small business TechServe members was included in Small Business Administration’s comments opposing the IFR. TechServe CEO Mark Roberts opposed the IFR because it (1) violated requirements for rulemaking under the Administrative Procedures Act; (2) was not clear that private wage surveys would be allowed or may not be available in rural areas; and (3) there was emerging evidence that the DOL methodology for setting wage levels was deeply flawed.

The TechServe Government Affairs Team thanks our members who provided input for our comments and background information to the SBA.

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