As ILBSG has reported over the last several days, the Biden Administration issued an Executive Order formally recommending that all government agencies consider postponing any rules which have been published in the Federal Register but are not yet in effect for at least 60 days. As ILBSG has emphasized, this is merely a recommendation from the White House and does not have any automatic or binding effect on the agencies. In order for there to be a 60-day postponement of any rule, the relevant government agency must take official action and publish the postponement in the Federal Register.
On January 8, 2021, the Department of Homeland Security (DHS) published a final rule which replaces the current H-1B Cap lottery system with a wage-based selection process, prioritizing the highest wage level registrations. Under this system, USCIS will select all cases which are registered for Level IV first, before moving on to Level III, then to Level II, and so on. Currently, this rule is scheduled to take effect on March 9, 2021.
To date, DHS has not posted a postponement of the rule pursuant to the White House’s recommendation, which is causing a lot of uncertainty over the upcoming H-1B Cap and what the process may look like this year. That said, ILBSG encourages its clients to remain steadfast, as a decision has yet to be made and there is still plenty of time for the final rule to be postponed or even withdrawn before the registration period begins. A new Secretary of Homeland Security, Alejandro Mayorkas, was confirmed earlier today, meaning immediate changes to previously published rules could indeed be coming.
In the meantime, since no action has been taken to postpone this rule, USCIS is taking preliminary steps to comply. Over the past few days, USCIS has taken steps to incorporate questions regarding wage levels and SOC codes into both the H-1B registration tool and the I-129 form. Revised version of both forms with questions about wage level information have been submitted to the Office of Management and Budget (OMB) for review and approval. Nonetheless, if the effective date of the rule is postponed for 60 days or longer through formal action by DHS, the wage-based selection system will be delayed and these additional wage level-based additions to the forms will not be required for the FY 2022 registration process.
It is heavily anticipated that USCIS will soon make an announcement regarding the FY 2022 registration process, to clarify these uncertainties. ILBSG is closely monitoring this issue and stands ready to assist our clients regardless of the outcome. We remain optimistic this significant change to the H-1B Cap will not be hastily implemented and that the new Administration will be given time for meaningful review, as requested through the Executive Order.
ILBSG will continue to update our clients on these important developments. We remain dedicated to our clients’ success and we are ready to navigate any changes in this area to continue to achieve the best results possible for our clients.
If you have any questions as you begin to prepare for the upcoming H-1B Cap, please reach out to an ILBSG attorney today. ILBSG is currently accepting registrations on the My ESQ portal.