Rules that have been published or issued, but have not yet taken effect, will be covered by this freeze period, with possible extensions beyond the 60-day period.
At the fag-end of Trump’s tenure as the US President, immigration related rules and policies had been issued by federal agencies such as the department of labour (DOL) and department of homeland security (DHS). These included the rule to replace the annual H-1B cap random selection (lottery) process with a salary-based selection process; the final wage rule, which had sought to hike the wages across all four skill levels, but introduce it in a phased manner; and lastly the change in the employer-employee definition and requirement cast on clients of IT service companies and staffing companies (where H-1B workers are deputed) to file H-1B visa applications and labour condition applications. All these proposed rules would have made hiring of H-1B workers challenging. The regulatory process for these rules will now be halted.
This offers some respite to the technology sector which is heavily dependent on H-1B visas. As a significant number of H-1B visas are allotted or held by Indians any policy change has an impact on the Indian diaspora.
“Regulations that have been sent to the office of the federal register (OFR) but not yet published are to be withdrawn consistent with OFR procedures so that they can be reviewed and approved by an agency head appointed by President Biden.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,” explains Mitch Wexler, partner at Fragomen, an immigration law firm.
According to Cyrus Mistry, founder of an immigration law firm in New York, “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.”
Federal agencies have been asked to consider opening a 30-day public comment period to enable stakeholders to provide comments about issues of fact, law and policy raised by these rules. In order to continue with their review process, the agencies can further delay the rules, beyond the 60-day period.
If the rules raise substantial questions of fact, law or policy, the agencies have been asked to notify the office of management and budget (OMB) which oversees the implementation of the President’s vision across the executive branch. Further action should be taken in consultation with OMB, states the memorandum.