Yesterday, January 20, 2021, White House Chief of Staff Ron Klain issued a memorandum regarding review of pending regulatory actions which directs, in part, that (1) all rules pending at the Federal Register that have not been published must be immediately withdrawn, and (2) agencies must “consider” postponing the effective dates for regulations that have been published, but not yet taken effect, for 60 days from the date of this memorandum. As a result, the modified version of the Strengthening the H-1B Nonimmigrant Visa Classification Program Final Rule (which narrowly amends its regulations to clarify how U.S. Citizenship and Immigration Services (USCIS) will determine whether there is an “employer-employee relationship” between the petitioner and the beneficiary for the purposes of qualifying as a “United States employer.”) will now be withdrawn. This rule was sent to the Federal Register on January 15, but has not yet been published. In addition, any final rule that has already published, but not yet taken effect may upon further agency action be postponed for until March 21, 2021, including the H-1B Wage Selection Final Rule. (which alters the methodology for selecting H-1B cap registrations from a random process to a wage based ranking process).
As the two bulletins clarifying filing requirements for LCAs by secondary employers and on H-1B program obligations for common-law employers published by the Department of Labor on January 15, 2021, rely on the finalization of the DHS Rule, it is likely that they will be withdrawn by DOL as well.
Alka Bahal is a Partner and the Co-Chair of the Immigration Practice of Fox Rothschild LLP, specializing in corporate immigration law and compliance. Alka is situated in Fox Rothschild’s Morristown, New Jersey office and she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or firstname.lastname@example.org.