Public Policy Roundup: DHS Delays H-1B Lottery Wage Rule, Worldwide ERC® Files DOL Wage Rule Comment, and More

We’re rounding up the critical public policy developments that affect the workforce mobility industry, starting with the delay of the H-1B wage rule.

On 7 January, the United States Citizen and Immigration Services (USCIS) finalized a rule under the Trump administration to prioritize the selection of H-1B lottery cases based on the highest wage levels established under the Standard Occupational Classification (SOC) codes within the subject area of employment. Previously set to go into effect on 9 March, President Biden’s administration at the Department of Homeland Security (DHS) announced a delay of the rule, pushing the effective date to 31 December. The delay was caused by concerns that there was insufficient time to complete the development and testing of the new system and ensure that the changes could be properly implemented.

Worldwide ERC® filed comment on the rule in December asking for a delay of any final rule’s implementation until Fiscal Year 2023 H-1B cap season, as employers are already preparing H-1B lottery cap cases for Fiscal Year 2022 with the current registration process in mind. Worldwide ERC® also joined a multi-sector comment letter supporting the delay of the rule.

This delay ensures that the current rules will apply to the H-1B registration period for this fiscal year’s H-1B cap filing. Worldwide ERC® will be working to file comment on any modified rule issued in the next 60 days for the fiscal year 2023 H-1B cap filing season.

Additional USCIS Updates

The USCIS also published a memo on 3 February rescinding a prior memo that questioned the “specialty occupation” classification of potential H-1B beneficiaries seeking to work as computer programmers. Labor Department language in the rescinded memo around whether a degree was “usually” or “always” required to perform the task of a computer programmer resulted in many such positions not meeting the requirements of a specialty occupation. This led to significant increases in the number of Requests of Evidence (RFEs) on H-1B worker petitions. This is seen as a positive step from USCIS to clarify and provide more certainty for H-1B petitioners.

Worldwide ERC® Files Comment on Final Department of Labor Wage Rule

On 8 February, Worldwide ERC® filed comment on the delay of the U.S. Department of Labor (DOL) final rule that would require employers to increase what they pay H-1B beneficiaries. This rule, released on 8 October 2020, would make it difficult for companies to hire high-skilled foreign nationals that fill critical roles in the U.S. Worldwide ERC® also filed comment on the rule in November, arguing on behalf of the workforce mobility industry that the rule will harm employers and jeopardize the hiring of foreign talent.

Congress to Hold Hearing on Bold Immigration Reform this Week and DREAM Act Reintroduction

On 11 February, the House Judiciary Committee’s Immigration Subcommittee is scheduled to hold a hearing calling for the need for bold immigration reform. Worldwide ERC® will be tracking this hearing and submitting a letter to subcommittee leaders Representative Zoe Lofgren (D-CA) and Ken Buck (R-CO) outlining our public policy priorities on immigration reform for the workforce mobility industry.

In other news, Senators Dick Durbin (D-Ill) and Lindsey Graham (R-SC) reintroduced the bipartisan DREAM Act. This bill allows immigrant students without lawful status who were brought here as children and grew up in the United States to earn lawful permanent residence and eventually American citizenship. This comes as President Joe Biden rolls out his plans for immigration reform, which includes his Presidential Action on Preserving and Fortifying Deferred Action for Childhood Arrivals (DACA). This action directs DHS to “preserve and fortify” the DACA program for those brought to the U.S. as undocumented children to provide them with legal status and work authorization.

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How This Impacts Mobility

The delay of the USCIS’s H-1B lottery wage rule is a positive step for this year’s H-1B cap filings. The USCIS’s efforts to clarify language around specialty occupation requirements is also a positive development, as is the House Immigration Subcommittee’s hearing on the need for bold immigration reform later this week and the bipartisan reintroduction of the DREAM Act. Worldwide ERC® advocates for immigration public policy initiatives that benefit access to and mobility of talent. Should any member have questions regarding these updates, please reach out to our Vice President of Member Engagement and Public Policy Rebecca Peters, rpeters@worldwideerc.org