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H-1B Visa Changes Delayed Until December 2021

As immigration lawyers that work extensively on employment-based immigration, the H-1B visa has been a big part of our practice. It is for foreign nationals that “wish to perform services in a specialty occupation, [and] services of exceptional merit,” according to United States Citizenship and Immigration Services. The visas are used by employers to bring in people to fill specific needs, whether it’s a tech company looking for employees with in-demand skills, or a rural hospital looking overseas for doctors that have an incentive to accept salaries lower than those paid by hospitals in metropolitan areas.

The Trump Administration instituted a radical change to the H-1B visa program during its lame duck period when it tied H-1B visa approvals to salaries. It worked from the premise that those who are tops in their fields get paid the most. Under the change, the highest paid applicants in a field would have their visa applications granted, but since there is a limited number of H-1B visas in a year—65,000 plus an additional 20,000 for international students that complete graduate studies at an American institution—not everybody who applies will receive a visa. When the changes were proposed, USCIS projected that nobody who would receive entry level wages would receive an H-1B visa this year. 

We argued recently that while the rationale for the change was to grant visas to people who would make positive contributions to the U.S., but in fact it was an effort to discourage companies from seeking H-1B visas by making prospective employees too expensive to hire. Rural school systems, like hospitals in less populous regions, would have a hard time hiring to meet their staffing needs if new hires had to be prohibitively expensive to get an H-1B visa.

Last week, USCIS announced that it will delay the new rule’s effective date until December 31, 2021 instead of March 9 as announced by the Trump administration. That means this year’s H-1B immigration lottery will run more or less as it did last year with applications accepted in the registration process from March 9 through March 25. Those selected in the registration process will be notified by March 31, and petitions for those selected in the registration process may be filed as early as April 1, 2021. The success of the applications will not be directly tethered to the salary. 

That’s good for 2021, but the delay was announced “to give USCIS more time to develop, test, and implement the modifications to the H-1B registration system and selection process,” according to a Department of Homeland Defense (DHS) statement. That announcement doesn’t signal a course correction as much as an effort to do due diligence so that it doesn’t end up with the kind of train wreck that the Trump administration often created by hastily circumventing channels and procedures to speed untested, ill-conceived ideas into implementation. 

This means two things:

1) Those employers interested in entering the 2021 H-1B lottery should contact an experienced immigration attorney to make sure that they are ready to apply when the registration process opens on March 9, 2021. Earlier applications may have premium processing available to them, which means applicants will get a decision within 15 days of filing a request.  At some point, applications eventually swamp the system each year so there will come a point when premium processing is no longer feasible, and normal processing can take upwards of 6-10 months in some cases. That means that when the October 1 start time for H-1B jobs roll around, a person stuck with normal processing would not be able to start work in H-1B status. Since many states refuse to renew driver’s licenses without the H-1B approval, the delay can prevent applicants from driving while they’re waiting for USCIS to do its job. 

Premium processing is not cheap, though Fees were recently increased to $2,500 as a fundraising measure for USCIS.

2) We have time make the case with the Biden administration against tying the H-1B to wages. That connection will help the rich get richer and leave those in need where they are.    

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