President Biden to Face Trump’s 11th Hour Immigration Rules

In a flurry of activity before leaving office January 20, the Trump Administration implemented or extended changes to U.S. immigration policy that will likely be overturned by the incoming administration of President Joe Biden. 

Department of Labor Prevailing Wage Rule

The Department of Labor reissued a Wage Level Rule that will increase the minimum wage for H-1B and PERM labor certification. The new rule replaces an October 2020 DOL rule that was implemented without public comment – three federal district courts struck down that rule in December. Under the prevailing wage rule, entry-level wages for H-1B and PERM cases, currently set at the 17th percentile for occupation and geographic location, would increase to the 35th percentile.

While the rule is scheduled to take effect on March 15, 2021, President Biden plans to issue a memorandum on January 20th that will delay implementation of published regulations that have not yet taken effect. FordMurray will follow developments about this rule closely, as prevailing wage increases would have an enormous impact on the FY2022 H-1B lottery.  

Changes to H-1B Lottery

To further muddy the picture for the upcoming H-1B lottery, United States Citizenship and Immigration Services (USCIS) issued a final rule on Jan. 8 that would replace the current H-1B lottery with a system that would prioritize petitioners with the highest salaries.

While USCIS has said the new system will help protect wages for U.S. workers, the rule change would be a blow to industries that rely on foreign graduates of U.S. colleges and universities who work in hard-to-fill STEM positions.

President Biden could freeze or rescind the rule, which has been criticized by the U.S. Chamber of Commerce and leading technology employers.

COVID Visa Restrictions

While the Wage Level Rule and H-1B Rule will likely be changed or rolled back, a visa restriction on H-1B, J and L visas through March 31 may actually stay in place, primarily due to COVID. The restriction applies only to new issuance of visas under H-1B, H-2B, L-1 and J-1 visas and their dependent spouses and children – those who were in the United States prior to the June 24 issuance or who held a valid visa prior to June 24 are exempt from the ban.

Looking ahead

Just as Former President Trump made swift changes to the immigration landscape through Executive Order, we expect President Joe Biden to focus on implementing immigration orders and policies that reflect the values of his administration. We will update our clients in the event of any changes that impact their business and valued team members.